STERLING v. SELLERS et al

Filing 35

ORDER ADOPTING in part and REJECTING in part 30 Report and Recommendations; GRANTING in part and DENYING in part 22 Motion to Dismiss Complaint. Sterling's individual capacity RLUIPA claims are DISMISS ED with prejudice. Also, Sterling's official capacity retaliation claims are DISMISSED as barred by Eleventh Amendment immunity. Meanwhile, Sterling's free exercise and retaliation claims against the Defendants in their individual capacities are allowed to proceed. Sterling's official capacity RLUIPA and free exercise claims are also allowed to proceed. Ordered by US DISTRICT JUDGE MARC THOMAS TREADWELL on 3/31/2017. (tlh)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF GEORGIA
MACON DIVISION

RICO STERLING,
Plaintiff,
v.
ERIC SELLERS, Warden, et al.,

Defendants.

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CIVIL ACTION NO. 5:16-CV-13 (MTT)

ORDER
Before the Court is the Recommendation (Doc. 30) of Magistrate Judge Stephen
Hyles regarding Defendants Warden Eric Sellers and George Ivey’s Motion to Dismiss
(Doc. 22) Plaintiff Rico Sterling’s First Amendment retaliation, Religious Land Use and
Institutionalized Persons Act (RLUIPA), and free exercise of religion claims brought
pursuant to 42 U.S.C. § 1983. The Magistrate Judge recommends dismissing Sterling’s
First Amendment retaliation and RLUIPA claims against the Defendants in their
individual capacities. Id. at 11-12. The Magistrate Judge also recommends granting
qualified immunity to the Defendants for Sterling’s free exercise claim based on the
denial of congregational prayer. Id. at 5. Finally, the Magistrate Judge recommends
dismissing Sterling’s First Amendment retaliation claims against the Defendants in their
official capacities as barred by Eleventh Amendment immunity. Both parties have
objected to the recommendation. Docs. 33; 34. In an abundance of caution, the Court
has performed a de novo review as to the portions of the Recommendation to which the

parties object as well as those portions not subject to objection. The Recommendation
is ADOPTED in part and REJECTED in part.
The Defendants object to the Magistrate Judge’s consideration of allegations
within Sterling’s Motion to Amend (Doc. 12). Doc. 33 at 1-2. Additionally, the
Defendants argue that if those allegations are considered then they should supplant the
original complaint and the two pleadings should not be considered together. Id. But, as
a pro se litigant, Sterling’s pleadings are “held to a less stringent standard than
pleadings drafted by attorneys and will, therefore, be liberally construed.” Miller v.
Donald, 541 F.3d 1091, 1100 (11th Cir. 2008) (citations omitted). Therefore, it was not
improper for the Magistrate Judge to construe the Motion to Amend as an amended
complaint. Additionally, the Court recognizes that an amended complaint generally
supersedes the original complaint. Fritz v. Standard Sec. Life Ins. Co. of N.Y., 676 F.2d
1356, 1358 (11th Cir. 1982). However, under these circumstances, construing the
original complaint and the allegations in the motion to amend together aids in the
“orderly and expeditious disposition of” this case. In re Novak, 932 F.2d 1397, 1406
(11th Cir. 1991) (quotations and citations omitted). Thus, this Court agrees with the
Magistrate Judge’s decision to consider both the allegations in the original complaint
and those stated in the motion to amend.
The Defendants also object to the Magistrate Judge’s finding that Sterling has
alleged a substantial burden on his religion as required for his official capacity RLUIPA
and free exercise claims. Doc. 33 at 3-5. According to the Defendants, Sterling
concedes that the multi-purpose room is available for prayer and thus he has not
alleged a substantial burden based on the Defendants’ purported denial of

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congregational prayer. Doc. 33 at 4. However, Sterling does not concede this but
merely quotes Defendant Sellers as saying, in response to one of Sterling’s grievances,
that the multi-purpose room is available for congregational prayer once a week. Doc. 1
at 8. Moreover, even if the multi-purpose room is available for this purpose once a
week, Sterling still alleges a substantial burden because he claims his religion requires
him to engage in congregational prayer every day. Doc. 12 at 1.
Next, the Defendants assert that Sterling has not alleged a substantial burden on
the exercise of his religion based on the denial of the opportunity to take part in the Eid
holiday because he has not alleged that the Eid is “religiously-mandated” or “obligatory.”
Doc. 33 at 4-5. “To establish a prima facie case under RLUIPA, the plaintiff must
demonstrate that his engagement in religious exercise was substantially burdened by
the law, regulation, or practice he challenges.” Smith v. Owens, 848 F.3d 975, 979
(11th Cir. 2017). “The term ‘religious exercise’ includes any exercise of religion,
whether or not compelled by, or central to, a system of religious belief.” 42 U.S.C.
§ 2000cc–5(7)(A); see also Smith, 848 F.3d at 979. Therefore, Sterling is not required
to allege that the Eid holiday is “religiously-mandated” for a denial of that activity to
serve as a substantial burden for purposes of his RLUIPA and free exercise claims.
Accordingly, the Magistrate Judge did not err in finding his compliant stated a
substantial burden and the Court adopts that portion of the recommendation.
Sterling objects to the dismissal of his First Amendment retaliation claims against
Sellers and Ivey in their individual capacities. Doc. 34 at 1-4. The Court sustains that
objection. The Magistrate Judge found that Sterling failed to state a retaliation claim
because he had not sufficiently alleged that a prisoner of ordinary firmness would be

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deterred as a result of the adverse conduct. Doc. 30 at 10-11 (citing Smith v. Mosley,
532 F.3d 1270, 1276 (11th Cir. 2008)). The Magistrate Judge’s recommendation
appears to rely on the Defendants’ argument that Sterling failed to allege that a
reasonable person of ordinary firmness would be deterred from filing grievances or
lawsuits due to the adverse conduct. Doc. 30 at 10. But Sterling alleges that he was
retaliated against—by being placed in administrative segregation and “lock-down”—for
exercising his First Amendment religious rights and for filing grievances. Docs. 1 at 5,
9-10; 28-1 at 7, 9-11. Indeed, the Defendants in their brief characterize Sterling’s
retaliation claim as one of being placed in “administrative segregation for engaging in
Muslim prayer in the dayroom.” Doc. 22-1 at 2. The Defendants simply overlook the
issue they acknowledge Sterling has raised—whether an ordinary prisoner would be
deterred from “engaging in Muslim prayer in the dayroom” in the face of these types of
reprisals. Id. Given the Defendants failure to address the issue, and Sterling’s
allegations that he was deterred from practicing his religion, the Court cannot on its own
say as a matter of law that Sterling has not sufficiently alleged deterrence.1 Doc. 28-1
at 11 (citing Bennett v. Hendrix, 423 F.3d 1247, 1255 (11th Cir. 2005) (stating whether a
plaintiff himself was deterred “might be evidence of what a reasonable person would
have done”). And although Sterling apparently concedes that he was not deterred from
filing grievances, that is not conclusive of whether a prisoner of ordinary firmness may

1

Although the Defendants do not address the deterrent effect of administrative segregation on the
exercise of Sterling’s religion, they do argue generally that being placed in administrative segregation is
not punitive and therefore is not adverse conduct. Doc. 22-1 at 13-14. The Recommendation does not
address this argument and the cases the Defendants cite for this principle are factually inapposite. See
Mosley v. Medlin, 2015 WL 106230 (S.D. Ga. 2015); Bruce v. Gregory, 2012 WL 5907058 (M.D. Fl.).
Indeed, one reaches the opposite conclusion from what the Defendants contend. Jinks v. Medlin, 2014
WL 1224595 (allowing the plaintiff’s retaliation claim to proceed). On this record, and under the
circumstances, the Court cannot say as a matter of law that Sterling has not sufficiently alleged adverse
conduct.

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be deterred from doing so.2 See, e.g., Nelson v. McLaughlin, 2014 WL 314478, at *3
(M.D. Ga.); see also Bennett, 423 F.3d at 1252 (“It would be unjust to allow a defendant
to escape liability for a First Amendment violation merely because an unusually
determined plaintiff persist[ed] in his protected activity.”). The Court therefore finds that
Sterling has stated a First Amendment retaliation claim against Ivey in his individual
capacity.3
The Magistrate Judge’s recommendation concerning Sterling’s retaliation claim
against Sellers was dependent upon its finding that Sterling did not state a retaliation
claim against Ivey. Doc. 30 at 12. Accordingly, the Court cannot adopt that
recommendation. A plaintiff may state a claim for supervisory liability by proving a
causal connection between the supervisor and the constitutional violation. Cottone v.
Jenne, 326 F.3d 1352, 1361 (11th Cir. 2003), abrogated in part on other grounds by
Randall v. Scott, 610 F.3d 701 (11th Cir. 2010). “[A] causal connection may be
established when a supervisor's custom or policy . . . result[s] in deliberate indifference
to constitutional rights or when facts support an inference that the supervisor directed
the subordinates to act unlawfully or knew that the subordinates would act unlawfully
and failed to stop them from doing so.” Id. (quotation marks and citations omitted).
Here, Sterling alleges that he informed Sellers of Ivey’s retaliatory conduct. Doc. 1 at 7.
2

In his objection, Sterling appears to argue that, although he was not deterred from filing grievances, an
ordinary prisoner may be deterred from doing so because of the adverse conduct. Doc. 34 at 6.

3

In their Brief, the Defendants also argue that Sterling’s claim against Ivey should be dismissed because
Sterling does not allege that Ivey was responsible for the adverse conduct and that he fails to state a
causal relationship between the retaliatory conduct and the protected speech. Doc. 22-1 at 13-21. The
Court rejects these arguments. Sterling does allege Ivey was responsible for this adverse conduct, and
he sufficiently states a causal relationship between that adverse conduct and the protected speech. See
Doc. 1 at 5. Sterling’s allegations show that Ivey was subjectively motivated by the protected speech.
See Docs 1 at 6; 28-1 at 11-12. And, although his complaint lacks specific dates, accepting his
allegations as true and construing his complaint liberally as required at the motion to dismiss stage with a
pro se litigant, his allegations establish a sufficient temporal relationship between the protected speech
and the adverse conduct.

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Additionally, Sterling claims that Sellers not only knew Ivey was punishing prisoners for
praying in the dayroom but that it was in fact Sellers’s policy not to allow prayer in the
dayroom. Docs. 1 at 7; 28-1 at 13-14. Sterling even attaches a memorandum to his
complaint from Sellers that mandates “Religious services including prayer . . . are only
to be conducted in your individual cells or during scheduled Religious Service.” Doc. 18. These allegations, taken as true, state that Sellers put a “custom or policy” in place
that “result[ed] in the deliberate indifference to constitutional rights”—namely the right to
congregational prayer that Sterling asserts. Cottene, 326 F.3d at 1361. Moreover,
Sterling’s allegations allow for the inference that Sellers directed his employees to
punish Sterling and other prisoners for exercising their First Amendment religious rights.
See Id. The Court finds therefore that Sterling has alleged a First Amendment
retaliation claim against Sellers. Accordingly, the Recommendation is REJECTED as to
the First Amendment retaliation claim against the Defendants in their individual
capacities. The Defendants’ motion to dismiss is DENIED as to that claim.
Sterling also objects to the Magistrate Judge’s recommendation to grant qualified
immunity to the Defendants regarding Sterling’s free exercise claim based on the denial
of congregational prayer. Doc. 34 at 4. The Defendants’ qualified immunity argument is
based on their rejected assertion that Sterling has not stated a constitutional violation.
See Doc. 22-1 at 26. The Defendants do not address whether, if Sterling alleges a
constitutional violation, he has shown a clearly established right. See id. Accordingly,
based on the arguments in the Defendants’ motion, the Court cannot grant qualified
immunity at this time. The Court notes that the Magistrate Judge did evaluate whether
Sterling has shown a clearly established right. Doc. 30 at 15. However, the

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Recommendation’s characterization of the facts in this analysis is incorrect and
therefore the Court REJECTS the portion of the Recommendation addressing qualified
immunity and the denial of congregational prayer.4
The remaining portions of the Recommendation are ADOPTED and made the
order of this Court. Specifically, the Magistrate Judge’s conclusions regarding the
Defendant’s abuse of judicial process and failure to exhaust arguments.
As discussed above, the Defendants’ Motion to Dismiss is GRANTED in part
and DENIED in part. Sterling’s individual capacity RLUIPA claims are DISMISSED
with prejudice.5 Also, Sterling’s official capacity retaliation claims are DISMISSED as
barred by Eleventh Amendment immunity. Meanwhile, Sterling’s free exercise and
retaliation claims against the Defendants in their individual capacities are allowed to
proceed. Sterling’s official capacity RLUIPA and free exercise claims are also allowed
to proceed.
SO ORDERED, this the 31st day of March, 2017.
S/ Marc T. Treadwell
MARC T. TREADWELL, JUDGE
UNITED STATES DISTRICT COURT

4

The Magistrate Judge recommends granting qualified immunity because Sterling has not met “his
burden of showing that entitlement to congregational prayer in the dayroom, while in an administrative
segregation unit is a clearly established right.” Doc. 30 at 15. Sterling does not claim that he is entitled to
congregational prayer while he is in administrative segregation. Rather, Sterling claims he is entitled to
engage in congregational prayer while in the prison’s general population and that, when he has exercised
that right, he has been placed in administrative segregation. Docs. 1 at 5-10; 12 at 3.

5

Amendment to these claims would be futile because RLUIPA does not allow for claims against
defendants in their individual capacity. 42 U.S.C. § 2000cc-2(a); see also Smith v. Allen, 502 F.3d 1255,
th
1266 (11 Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277 (2011).

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