Rosales v. Watts et al

Filing 9

ORDER directing the USM to serve in accordance with Fed.R.Civ.P. 4(i) re 1 Complaint filed by Javier Rosales. Thus, in addition to service upon Defendants individually, a copy of the complaint and summons shall be delivered, in the manner prescribed by Rule 4(i) to the U.S. Attorney for the SDGA (or the civil process clerk of the same), and the Attorney General of the U.S. at Washington, DC. Signed by Magistrate Judge R. Stan Baker on 1/4/2016. (ca)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF GEORGIA
BRUNSWICK DIVISION

JAVIER ROSALES,
Plaintiff,

CIVIL ACTION NO.: 2:15-cv-94

v.
HARRELL WATTS; RAYMOND E. HOLT;
SUZANNE R. HASTINGS; JOHN V.
FLOURNOY; KEN HARRIS, JR.; and SAM
KIRCHOFF,
Defendants.

ORDER and MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Plaintiff, who is currently housed at the Federal Correctional Institute in Jesup, Georgia
(“FCI Jesup”), submitted a Complaint in the above captioned action contesting certain conditions
of his confinement. Plaintiff has also filed a Motion to recuse the undersigned Magistrate Judge
from this case. (Doc. 6.) After careful consideration, the Court DENIES Plaintiff’s Motion to
Recuse.

Additionally, the Court has conducted the requisite frivolity review of Plaintiff’s

Complaint under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 402
U.S. 388 (1971) and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb. As
set forth below, I RECOMMEND that the Court DISMISS Plaintiff’s claims for monetary
damages against Defendants in their official capacities. I further RECOMMEND that the Court
DISMISS Plaintiff’s Bivens claims for punitive and compensatory damages.

However,

Plaintiff’s allegations arguably state colorable claims for relief under Bivens and the RFRA
against Defendants Harrell Watts, Raymond E. Holt, Suzanne Hastings, John V. Flournoy, Ken

Harris, and Sam Kirchoff. Consequently, the United States Marshall shall serve a copy of
Plaintiff’s Complaint and a copy of this Order upon these Defendants and the United States
pursuant to Federal Rule of Civil Procedure 4(i) without prepayment of cost.
BACKGROUND 1
Plaintiff believes and practices the Santeria religion and is imprisoned at FCI Jesup.
(Doc. 1, p. 3.) Plaintiff alleges that Defendant Ken Harris, Jr., the Chaplain Supervisor, at FCI
Jesup has deprived Plaintiff of the ability to practice his sincerely held religious beliefs. Id.
Specifically, Defendant Harris has created a policy eliminating the practice of the “Spiritual
Mass” ceremony. Id. This policy has been carried out by Defendant Sam Kirchoff, the Chaplain
at FCI Jesup. Id. In addition, Plaintiff complained about this policy to Defendants Watts, Holt,
Hastings, and Flournoy, and each of these Defendants supported the policy. Plaintiff contends
that this policy was based on discrimination against Santeria practitioners and not on any safety
or security concerns. Id. Plaintiff contends there is a “Standardized Practice” for other religions
including Christianity and Islam but Defendants have discriminatorily failed to establish such a
practice for Santeria. (Id. at pp. 9–10.)
Plaintiff maintains that prior to Defendant Harris arriving at FCI Jesup in November
of 2014, there was a “Standardized Spiritual Mass” for Santeria practitioners at the Prison. (Id.
at p. 8.)

This “Standardized Mass” for Santeria allowed, among other things, for each

practitioner to receive a half-cut cigar “so that the practitioner could properly invoke their own
spiritual protectors and to spiritually be cleansed.” Id. This practice was implemented without
any security or safety issues. (Id. at pp. 7–9.) However, on or about November 17, 2014,
Defendant Harris terminated the practice of providing each practitioner a cigar and instead only
1

The below recited facts are taken from Plaintiff’s Complaint and are accepted as true, as they must be at
this stage.

2

allowed two cigars for the ceremony. (Id. at p. 8.) Additionally, Plaintiff claims that due to their
opposition to Defendants’ policies, Defendant Harris has targeted Santeria Practitioners in other
ways. (Id. at p. 9.) Specifically, he has not ordered supplies for Santeria Practitioners including
bead necklaces containing “Ache.” Id. Plaintiff contends that these actions have not been taken
for any legitimate government interest.
In his Complaint, Plaintiff requests compensatory damages in the amount of $320.00 per
day and punitive damages in the amount of $320.00 per day. (Id. at p. 9.) He also requests
“declaratory relief” against each Defendant. Id.
STANDARD OF REVIEW
Plaintiff seeks to bring this action in forma pauperis. Under 28 U.S.C. § 1915(a)(1), the
Court may authorize the filing of a civil lawsuit without the prepayment of fees if the plaintiff
submits an affidavit that includes a statement of all of his assets and shows an inability to pay the
filing fee and also includes a statement of the nature of the action which shows that he is entitled
to redress. Even if the plaintiff proves indigence, the Court must dismiss the action if it is
frivolous or malicious, or fails to state a claim upon which relief may be granted. 28 U.S.C.
§§ 1915(e)(2)(B)(i)–(ii). Additionally, pursuant to 28 U.S.C. § 1915A, the Court must review a
complaint in which a prisoner seeks redress from a governmental entity. Upon such screening,
the Court must dismiss a complaint, or any portion thereof, that is frivolous or malicious, or fails
to state a claim upon which relief may be granted or which seeks monetary relief from a
defendant who is immune from such relief. 28 U.S.C. § 1915A(b).
When reviewing a Complaint on an application to proceed in forma pauperis, the Court is
guided by the instructions for pleading contained in the Federal Rules of Civil Procedure. See
Fed. R. Civ. P. 8 (“A pleading that states a claim for relief must contain [among other things] . . .

3

a short and plain statement of the claim showing that the pleader is entitled to relief.”); Fed. R.
Civ. P. 10 (requiring that claims be set forth in numbered paragraphs, each limited to a single set
of circumstances). Further, a claim is frivolous under Section 1915(e)(2)(B)(i) “if it is ‘without
arguable merit either in law or fact.’” Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir. 2002)
(quoting Bilal v. Driver, 251 F.3d 1346, 1349 (11th Cir. 2001)).
Whether a complaint fails to state a claim under Section 1915(e)(2)(B)(ii) is governed by
the same standard applicable to motions to dismiss under Federal Rule of Civil
Procedure 12(b)(6). Thompson v. Rundle, 393 F. App’x 675, 678 (11th Cir. 2010). Under that
standard, this Court must determine whether the complaint contains “sufficient factual matter,
accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556
U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A
plaintiff must assert “more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not” suffice. Twombly, 550 U.S. at 555. Section 1915 also
“accords judges not only the authority to dismiss a claim based on an indisputably meritless legal
theory, but also the unusual power to pierce the veil of the complaint’s factual allegations and
dismiss those claims whose factual contentions are clearly baseless.” Bilal, 251 F.3d at 1349
(quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)).
In its analysis, the Court will abide by the long-standing principle that the pleadings of
unrepresented parties are held to a less stringent standard than those drafted by attorneys and,
therefore, must be liberally construed. Haines v. Kerner, 404 U.S. 519, 520 (1972); Boxer X v.
Harris, 437 F.3d 1107, 1110 (11th Cir. 2006) (“Pro se pleadings are held to a less stringent
standard than pleadings drafted by attorneys.”) (emphasis omitted) (quoting Hughes v. Lott, 350
F.3d 1157, 1160 (11th Cir. 2003)). However, Plaintiff’s unrepresented status will not excuse

4

mistakes regarding procedural rules. McNeil v. United States, 508 U.S. 106, 113 (1993) (“We
have never suggested that procedural rules in ordinary civil litigation should be interpreted so as
to excuse mistakes by those who proceed without counsel.”).

DISCUSSION
I.

Motion to Recuse
Plaintiff contends that the undersigned should be recused from presiding in this matter

because of the Court’s prior Order in another matter. In that matter, the Court denied a plaintiff
that was a Santeria Practitioner leave to proceed on appeal in forma pauperis. Order Davila v.
Logan Marshall et al., 2:15-cv-94 (S.D. Ga. October 19, 2015) ECF No. 103. After the plaintiff
in that matter consented to paying the filing fee using the partial payment plan described by 28
U.S.C. § 1915(b), the Honorable Beverly Martin of the United States Court of Appeals for the
Eleventh Circuit subsequently found that the appeal was not frivolous and permitted the plaintiff
to proceed. Order Davila v. Logan Marshall et al., 15-10749 (11th Cir. Oct. 7, 2015).
Plaintiff’s Motion for Recusal is governed by 28 U.S.C. § 144 and 28 U.S.C. § 455(a)
and (b)(1). “The threshold requirement under § 144 disqualification procedure is that a party file
an affidavit demonstrating personal bias or prejudice on the part of the district judge against that
party or in favor of an adverse party.” Parrish v. Bd. of Comm'rs, 524 F.2d 98, 100 (5th
Cir.1975). 2 The statute provides in pertinent part:
Whenever a party to any proceeding in a district court makes and files a timely
and sufficient affidavit that the judge before whom the matter is pending has a
personal bias or prejudice either against him or in favor of any adverse party, such
judge shall proceed no further therein, but another judge shall be assigned to hear
such proceeding. The affidavit shall state the facts and reasons for the belief that
2

Decisions of the former Fifth Circuit issued prior the close of business on September 30, 1981,
constitute binding precedent in this Circuit. Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th
Cir.1981) (en banc).

5

bias or prejudice exists. . . . A party may file only one such affidavit in any case.
It shall be accompanied by a certificate of counsel of record stating that it is made
in good faith.
28 U.S.C. § 144. Once the affidavit is filed, the judge must determine whether the affidavit was
timely, whether it was accompanied by the necessary certificate of counsel, and whether the
affidavit satisfies the terms of the statute. Parrish, 524 F.2d at 100. “An affidavit is legally
sufficient if it meets a three-part test: (1) the facts must be material and stated with particularity;
(2) the facts must be such that, if true, they would convince a reasonable person that bias exists;
and (3) the facts must show that the bias is personal, rather than judicial, in nature.” United
States v. Merkt, 794 F.2d 950, 960 (5th Cir. 1986).
Section 455 provides, in relevant part:
(a) Any justice, judge, or magistrate of the United States shall disqualify himself
in any proceeding in which his impartiality might reasonably be questioned.
(b) He shall also disqualify himself in the following circumstances:
(1) Where he has a personal bias or prejudice concerning a party, or personal
knowledge of disputed evidentiary facts concerning the proceeding . . . .
28 U.S.C. § 455.

While Section 455 was enacted to broaden the range of circumstances

warranting disqualification, a judge nonetheless has an obligation “not to recuse when there is no
occasion for him to do so. . . . A judge, having been assigned to a case, should not recuse
himself on unsupported, irrational, or highly tenuous speculation.’” Carter v. W. Pub. Co.,
No. 99–11959–EE, 1999 WL 994997, at *2 (11th Cir. Nov. 1, 1999) (internal alterations and
citations omitted (quoting Hinman v. Rogers, 831 F.2d 937, 939 (10th Cir.1987) & United States
v. Greenough, 782 F.2d 1556, 1558 (11th Cir.1986)). The test of whether a judge should be
recused under this section is whether “an objective, disinterested, lay observer fully informed of
the facts underlying the grounds on which recusal was sought would entertain a significant doubt
about the judge’s impartiality.” United States v. Berger, 375 F.3d 1223, 1227 (11th Cir. 2004)

6

(quoting United States v. Patti, 337 F.3d 1317, 1321 (11th Cir. 2003)). A judge’s impartiality
must “reasonably be questioned” for the judge to recuse because “there is the need to prevent
parties from . . . manipulating the system for strategic reasons, perhaps to obtain a judge more to
their liking.” Carter, No. 99–11959–EE, 1999 WL 994997, at *2 (citing FDIC v. Sweeney, 136
F.3d 216, 220 (1st Cir.1998) (internal quotation marks omitted)).
While motions to recuse under Sections 144 and 455 may be referred to a judicial
colleague for review, they are typically decided by the presiding judge. See Berger v. United
States, 255 U.S. 22, 32-34, (1922) (“the reasons and facts for the belief the litigant entertains are
an essential part of the affidavit, and must give fair support to the charge of a bent of mind that
may prevent or impede impartiality of judgment.”); United States v. Azhocar, 581 F.2d 735, 738
(9th Cir. 1978) (“Only after the legal sufficiency of the affidavit is determined does it become
the duty of the judge to ‘proceed no further’ in the case.”) (quoting United States v. Montecalvo,
545 F.2d 684, 685 (9th Cir. 1976)); Harris v. Geico Gen. Ins. Co., 961 F. Supp. 2d 1223, 1227
(S.D. Fla. 2013) (“The mere filing of a § 144 affidavit does not automatically disqualify the
judge.”); Clark v. Deal, 2:09–CV–0050–RWS, 2009 WL 4899425, at *3–4 (N.D. Ga. Dec. 11,
2009).
Plaintiff’s Motion to Recuse and accompanying affidavit are not legally sufficient to
warrant recusal. Plaintiff makes no factual allegation of personal bias but instead refers to the
undersigned’s decision in another matter. This allegation is judicial, not personal, in nature. “A
judge’s rulings are not a sufficient basis for recusal in the absence of a showing of pervasive
bias.” Jones v. Luis, 372 F. App’x 967, 969 (11th Cir. 2010); see also, Draper v. Reynolds, 369
F.3d 1270, 1279 (11th Cir.2004) (“[J]udicial rulings alone almost never constitute a valid basis
for a bias or partiality motion.”) (quoting Liteky v. United States, 510 U.S. 540, 555 (1994)).

7

Moreover, nothing in the Court’s prior ruling indicates a bias against Plaintiff or any other
individuals. This Court will base its ruling in this matter, as in all matters, on the law, not on any
prejudice.
Put succinctly, an objective, disinterested observer would not entertain a significant doubt
about the undersigned’s impartiality in this matter. Consequently, Plaintiff’s Motion for Recusal
is DENIED.
II.

Dismissal of Official Capacity Claims for Monetary Damages
Plaintiff brings this action pursuant to Bivens and the RFRA. “Bivens only applies to

claims against federal officers in their individual capacities; it does not create a cause of action
for federal officers sued in their official capacities.” Sharma v. Drug Enforcement Agency, 511
F. App’x 898, 901 (11th Cir. 2013) (citing Corr. Servs. Corp. v. Malesko, 534 U.S. 61, 69–71
(2001)). Moreover, the Eleventh Circuit has held that Congress did not unequivocally waive the
Government’s sovereign immunity through the RFRA. Davila v. Gladden, 777 F.3d 1198, 121011 (11th Cir. 2015). Therefore, the RFRA does not authorize suits for money damages against
federal officers in their official capacities. Id. Thus, Plaintiff’s Bivens and RFRA claims for
money damages against Defendants in their official capacities should be DISMISSED.
III.

RFRA Claims
“Congress enacted RFRA ... in order to provide very broad protection for religious *1204

liberty.” Burwell v. Hobby Lobby Stores, Inc., –––U.S. ––––, 134 S.Ct. 2751, 2760 (2014).
Under the statute, the “Government shall not substantially burden a person’s exercise of religion
even if the burden results from a rule of general applicability.” 42 U.S.C. § 2000bb–1(a). If the
Government takes action that substantially burdens a person’s exercise of religion, it must
“demonstrate[ ] that application of the burden to the person—(1) is in furtherance of a

8

compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb–1(b); see also, Gonzalez v. O Centro
Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006) (pursuant to RFRA, the federal
government must demonstrate a compelling interest when substantially burdening the exercise of
religion).
The “RFRA requires the Government to demonstrate that the compelling interest test is
satisfied through application of the challenged law ‘to the person’—the particular claimant
whose sincere exercise of religion is being substantially burdened.” Id. at 430-31 (quoting 42
U.S.C. § 2000bb-1(b)). The Supreme Court has observed that the test for whether a person’s
religious exercise is substantially burdened is not “whether the religious belief asserted in a
RFRA case is reasonable.” Hobby Lobby, 573 U.S. at ––––, 134 S.Ct. at 2778. Instead, the
Court must look to “whether the [government’s rule] imposes a substantial burden on the ability
of the objecting part[y] to conduct [himself] in accordance with [his] religious beliefs.” Id.
(emphasis omitted); see also Yellowbear, 741 F.3d at 55 (noting that a burden is substantial
when it “prevents the plaintiff from participating in an activity motivated by a sincerely held
religious belief”).
According to Plaintiff, he has been denied the ability to participate in a ritual that his
Santeria belief not only motivates but requires. Additionally, he has been denied beads that are
critical to his substantially held religious beliefs. Davila v. Gladden, 777 F.3d 1198, 1205 (11th
Cir. 2014) (“The record before us reflects only that [Plaintiff’s] religious beliefs require him to
wear beads and shells infused with Ache. The Defendants presented no evidence or argument to
support a finding that [Plaintiff’s] exercise of his religious practices would not be burdened if he
is continued to be denied these things. Plaintiff has therefore shown, at least at this stage of the

9

litigation, that the Defendants substantially burdened his religious exercise by flatly preventing
him from having his beads and shells.”) Thus, Plaintiff arguably sets forth a plausible cause of
action under the RFRA against Defendants. 3
At this early stage, the Court declines to address whether Plaintiff’s RFRA claims against
Defendants in their individual capacities should be limited to injunctive relief or whether
monetary damages should be available. There is no binding precedent which addresses whether
the RFRA bars claims against individual defendants for monetary damages. See Davila v.
Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015) ([W]e decline to address whether RFRA
authorizes suits against officers in their individual capacities.”). Those courts to address the
issue have reached contradictory results. Compare Patel v. Bureau of Prisons, No. CV 09-200
(RDM), 2015 WL 4999906, at *6 (D.D.C. Aug. 21, 2015) (as matter of first impression, RFRA
authorizes individual-capacity damages claims against federal officials) and Davilla v. Nat’l
Inmate Appeals Coordinator, No. CV212-005, 2012 WL 3780311, at *3 (S.D. Ga. Aug. 31,
2012) aff’d sub nom. Davila v. Gladden, 777 F.3d 1198 (11th Cir. 2015) (dismissing RFRA
monetary damages claims).

3

The Court notes that this policy was formulated and carried out by Defendants Harris and Kirchoff.
However, Plaintiff has arguably alleged that the other Defendants have supported or ratified this policy.
Thus, at this stage, where the Court construes Plaintiff’s Complaint liberally and only dismisses those
claims that are not plausible, the Court will not dismiss Plaintiff’s claims against the supervisory
defendants. See Wilkinson v. Secy, Florida Dep't of Corr., No. 14-11239, 2015 WL 4269267, at *4 (11th
Cir. July 15, 2015) (“[Plaintiff’s] claims were based not on respondeat superior, but instead on an FDOC
policy or custom that allegedly substantially burdened [Plaintiff’s] religious exercise. And the claims
were advanced not under § 1983 but under RLUIPA. Put differently, [Plaintiff’s] claims were predicated
on a theory of direct liability rather than of vicarious liability, and were formulated under RLUIPA rather
than § 1983. For these reasons, the claims are cognizable, and the district court erred in ruling
otherwise.”); but see, Patel v. Bureau of Prisons, No. CV 09-200 (RDM), 2015 WL 4999906, at *8
(D.D.C. Aug. 21, 2015) (“The Court concludes that pure vicarious liability—that is, liability of
supervisors based solely on the acts of their subordinates—is not sufficient to state a claim under
RFRA.”)

10

Consequently, Plaintiff’s RFRA claims for injunctive relief will proceed against
Defendants in their official capacities, and his RFRA claims for monetary damages and
injunctive relief will proceed against Defendants in their individual capacities. 4
IV.

Bivens Claims
In Bivens, the United States Supreme Court “recognized for the first time an implied

private action for damages against federal officers” for violations of certain constitutional rights.
Corrections Services Corp. v. Malesko, 534 U.S. 61, 66 (2001). Here, Plaintiff seeks to hold
Defendants liable for violating his rights under the Free Exercise Clause of the First Amendment
and the Equal Protection Clause of the Fourteenth Amendment.
A. Free Exercise Claims
The Free Exercise Clause “requires government respect for, and noninterference with, the
religious beliefs and practices of our Nation’s people.” Cutter v. Wilkinson, 544 U.S. 709, 719
(2005). “To establish a violation of his right to free exercise,” a plaintiff “must first establish
that a state actor imposed a “substantial burden” on his practice of religion.” Wilkinson v. GEO
Grp., Inc., No. 14-10215, 2015 WL 1526642, at *2 (11th Cir. Apr. 7, 2015) (citing Church of
Scientology Flag Serv. Org., Inc. v. City of Clearwater, 2 F.3d 1514, 1549 (11th Cir. 1993)). To
prove that his religious exercise was substantially burdened, a plaintiff “must present evidence
that he was coerced to perform conduct that his religion forbids or prevented from performing
conduct that his religion requires.” Id. The defendants can then support their conduct on the
ground that they applied a “neutral law of general applicability[.]” Emp’t Div., Dep’t of Human
Res. of Or. v. Smith, 494 U.S. 872, 879 (1990).

4

It may be that Plaintiff’s injunctive relief claims will eventually only be treated as individual capacity
claims. See Patel v. Bureau of Prisons, No. CV 09-200 (RDM), 2015 WL 4999906, at *6 (“It is unlikely
that an action for injunctive or declaratory relief under RFRA would be treated as an individual-capacity
suit.”). However, the Court will not make that determination on the scant record before it.

11

Prisoners retain their First Amendment rights, including rights under the free exercise of
religion clause.

However, “lawful incarceration brings about the necessary withdrawal or

limitation of many privileges and rights, a retraction justified by the considerations underlying
our penal system.” Brunskill v. Boyd, 141 F. App’x 771, 774 (11th Cir.2005) (quoting O’Lone
v. Estate of Shabazz, 482 U.S. 342, 348, (1987)). “In the prison context, the state actor can
defend the action if it is ‘reasonably related to legitimate penological interests.’” Wilkinson,
2015 WL 1526642, at *2 (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Put succinctly,
“[i]n a prison setting, to demonstrate a free exercise violation, a plaintiff must show that prison
officials administered or implemented a policy or regulation, not reasonably related to any
legitimate penological interest or security measure, which substantially burdens and significantly
interferes with the practice of his religion or restricts his free exercise of a sincerely held
religious belief.” Hosey-Bey v. Williams, No. 2:12-CV-959-WHA, 2015 WL 4988388, at *6
(M.D. Ala. Aug. 19, 2015).
Plaintiff alleges that Defendants refused to allow him to receive religious materials and
participate in a ceremony that his religion requires him to conduct. These allegations set forth
plausible free exercise claims against Defendants. Therefore, these claims will survive frivolity
review.
B. Equal Protection Claims
Plaintiff’s claims also implicate the equal protection clause of the Fourteenth
Amendment. To state a valid Equal Protection claim, a prisoner must show: (1) that he has been
treated differently from other “similarly situated” inmates, and (2) that this discriminatory
treatment is based upon a constitutionally impermissible basis, such as religion.
Ray, 279 F.3d 944, 946-47 (11th Cir.2001) (per curiam).

12

Jones v.

Additionally, a prisoner must

demonstrate that the defendants were motivated by a discriminatory intent or purpose. See Parks
v. City of Warner Robins, 43 F.3d 609, 616 (11th Cir.1995) (requiring “proof of discriminatory
intent or purpose” to show an Equal Protection Clause violation); Elston v. Talladega County Bd.
of Educ., 997 F.2d 1394, 1406 (11th Cir.1993) (requiring a plaintiff to demonstrate that the
challenged action was motivated by an intent to discriminate in order to establish an equal
protection violation). Potential indicators of discriminatory intent include “a clear pattern of
disparate impact, unexplainable on grounds other than [religion]; the historical background of the
challenged decision or the specific events leading up to the decision; procedural or substantive
departures from the norm; and the legislative or administrative history of the challenged statute.”
Parks, 43 F.3d at 617 (citation omitted).
Here, Plaintiff has stated sufficient facts to establish a plausible claim that Defendants
intentionally discriminated against him on the basis of his religion.

Plaintiff states that

Defendants have allowed inmates of other religions, including Christians and Muslims, to
receive religious materials and have a standardized practice but have refused to provide the same
for Plaintiff, a Santeria practitioner, to receive similar treatment pertaining to his religion. Jones
v. St. Lawrence, No. CV410-066, 2010 WL 2772440, at *2 (S.D. Ga. July 13, 2010) (“Jones
alleges that Muslims have been treated differently from Christian and Jewish inmates . . . . That
is all that is required to survive § 1915A screening here.”).
C. Available Damages on Bivens Claims
“No Federal civil action may be brought by a prisoner confined in a jail, prison, or other
correctional facility, for mental or emotional injury suffered while in custody without a prior
showing of physical injury.” 42 U.S.C. § 1997e(e). The purpose of this statute is “to reduce the
number of frivolous cases filed by imprisoned plaintiffs, who have little to lose and excessive

13

amounts of free time with which to pursue their complaints.” Napier v. Preslicka, 314 F.3d 528,
531 (11th Cir. 2002) (citing Harris v. Garner, 216 F.3d 970, 976-79 (11th Cir. 2000)). “Tracking
the language of [this] statute, § 1997e(e) applies only to lawsuits involving (1) Federal civil
actions (2) brought by a prisoner (3) for mental or emotional injury (4) suffered while in
custody.” Id. at 532.
In Williams v. Brown, 347 F. App’x 429, 436 (11th Cir. 2009), the Eleventh Circuit
stated that, “compensatory damages under § 1983 may be awarded only based on actual injuries
caused by the defendant and cannot be presumed or based on the abstract value of the
constitutional rights that the defendant violated. Pursuant to 42 U.S.C. § 1997e(e), in order to
recover for mental or emotional injury suffered while in custody, a prisoner bringing a § 1983
action must demonstrate more than a de minim[i]s physical injury.” Id. (internal citations
omitted) (alterations in original). Consequently, a prisoner that has not suffered any physical
injury cannot recover compensatory or punitive damages.

Al-Amin v. Smith, 637 F.3d 1192,

1199 (11th Cir. 2011) (“In sum, our published precedents have affirmed district court dismissals
of punitive damage claims under the PLRA because the plaintiffs failed to meet § 1997e(e)’s
physical injury requirement.”); Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007) (“Plaintiff
seeks nominal, compensatory, and punitive damages. It is clear from our case law, however, that
the latter two types of damages are precluded under the PLRA.”) abrogated on other grounds by
Sossamon v. Texas, 563 U.S. 277 (2011).
However, the Eleventh Circuit has also stated that “[n]ominal damages are appropriate if
a plaintiff establishes a violation of a fundamental constitutional right, even if he cannot prove
actual injury sufficient to entitle him to compensatory damages.” Williams v. Brown, 347 F.
App’x at 436 (quoting Hughes v. Lott, 350 F.3d 1157, 1162 (11th Cir. 2003)). “Thus, a prayer

14

for nominal damages is not precluded by § 1997e(e).” Id. (quoting Smith v. Allen, 502 F.3d
at 1271; see also, Smith v. Barrow, No. CV 311-044, 2012 WL 6519541, at *5 (S.D. Ga. Nov. 9,
2012) report and recommendation adopted, No. CV 311-044, 2012 WL 6522020 (S.D. Ga.
Dec. 13, 2012) (“Nominal damages are available for violations of the First Amendment.”).
In this case, Plaintiff has not alleged that he has suffered any physical injury due to
Defendants’ alleged constitutional violations. Accordingly, the Court should DISMISS his
Bivens claims for compensatory and punitive damages pursuant to 42 U.S.C. § 1997e(e).
However, Section 1997e(e) does not bar Plaintiff’s Bivens claims for nominal damages and
injunctive relief.
Consequently, Plaintiff’s Bivens claims for injunctive relief will proceed against
Defendants in their official capacities, and his Bivens claims for nominal damages and injunctive
relief will proceed against Defendants in their individual capacities. 5
CONCLUSION
For the reasons set forth above, I RECOMMEND that the Court DISMISS Plaintiff’s
claims for monetary damages against Defendants in their official capacities.

I further

RECOMMEND that the Court DISMISS Plaintiff’s Bivens claims for punitive and
compensatory damages.
Any party seeking to object to this Report and Recommendation is ORDERED to file
specific written objections within fourteen (14) days of the date on which this Report and
Recommendation is entered. Any objections asserting that the Magistrate Judge failed to address
any contention raised in the Complaint must also be included. Failure to do so will bar any later
5

As with Plaintiff’s RFRA claims, it may be that Plaintiff’s Bivens claims for injunctive relief will be
treated as only official capacity claims. See Edwards v. Wallace Comty. Coll., 49 F.3d 1517, 1524 n. 9
(11th Cir.1995) (stating that claims for injunctive or declaratory relief are considered official capacity
claims against the relevant governmental entity). However, the Court will not make that determination at
this stage.

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challenge or review of the factual findings or legal conclusions of the Magistrate Judge. See 28
U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140 (1985). A copy of the objections must be
served upon all other parties to the action. The filing of objections is not a proper vehicle
through which to make new allegations or present additional evidence.
Upon receipt of Objections meeting the specificity requirement set out above, a United
States District Judge will make a de novo determination of those portions of the report, proposed
findings, or recommendation to which objection is made and may accept, reject, or modify in
whole or in part, the findings or recommendations made by the Magistrate Judge. Objections not
meeting the specificity requirement set out above will not be considered by a District Judge. A
party may not appeal a Magistrate Judge’s report and recommendation directly to the United
States Court of Appeals for the Eleventh Circuit. Appeals may be made only from a final
judgment entered by or at the direction of a District Judge. The Clerk of Court is DIRECTED
to serve a copy of this Report and Recommendation upon the Plaintiff.
REMAINING CLAIMS AND DEFENDANTS
Plaintiff’s allegations arguably state colorable claims for relief under Bivens and the
RFRA against Defendants Harrell Watts, Raymond E. Holt, Suzanne Hastings, John V.
Flournoy, Ken Harris, and Sam Kirchoff. Consequently, a copy of Plaintiff’s Complaint and a
copy of this Order shall be served upon these Defendants by the United States Marshal without
prepayment of cost. Because Defendants are employees of the United States sued in their
individual and official capacities, the Court further ORDERS that the United States Marshal
serve the United States in accordance with Federal Rule of Civil Procedure 4(i). Thus, in
addition to service upon Defendants individually, a copy of the complaint and summons shall be
delivered, in the manner prescribed by Rule 4(i) to the United States Attorney for the Southern

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District of Georgia (or the civil process clerk of the same), and the Attorney General of the
United States at Washington, D.C.
The Court also provides the following instructions to the parties that will apply to the
remainder of this action and which the Court urges the parties to read and follow.
INSTRUCTIONS TO DEFENDANTS
Because Plaintiff is proceeding in forma pauperis, the undersigned directs that service be
effected by the United States Marshal. Fed. R. Civ. P. 4(c)(3). In most cases, the marshal will
first mail a copy of the complaint to the Defendant by first-class mail and request that the
Defendant waive formal service of summons. Fed. R. Civ. P. 4(d); Local Rule 4.7. Individual
and corporate defendants have a duty to avoid unnecessary costs of serving the summons, and
any such defendant who fails to comply with the request for waiver must bear the costs of
personal service unless good cause can be shown for the failure to return the waiver. Fed. R.
Civ. P. 4(d)(2). Generally, a defendant who timely returns the waiver is not required to answer
the complaint until sixty (60) days after the date that the marshal sent the request for waiver.
Fed. R. Civ. P. 4(d)(3).
IT IS FURTHER ORDERED that Defendants are hereby granted leave of court to take
the deposition of the Plaintiff upon oral examination. Fed. R. Civ. P. 30(a). Defendants are
further advised that the Court’s standard 140 day discovery period will commence upon the
filing of the last answer. Local Rule 26.1. Defendants shall ensure that all discovery, including
the Plaintiff’s deposition and any other depositions in the case, is completed within that
discovery period.
In the event that Defendants take the deposition of any other person, Defendants are
ordered to comply with the requirements of Federal Rule of Civil Procedure 30. As the Plaintiff

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will likely not be in attendance for such a deposition, Defendants shall notify Plaintiff of the
deposition and advise him that he may serve on Defendants, in a sealed envelope, within ten (10)
days of the notice of deposition, written questions the Plaintiff wishes to propound to the
witness, if any. Defendants shall present such questions to the witness seriatim during the
deposition. Fed. R. Civ. P. 30(c).
INSTRUCTIONS TO PLAINTIFF
IT IS FURTHER ORDERED that Plaintiff shall serve upon Defendants or, if
appearance has been entered by counsel, upon their attorneys, a copy of every further pleading or
other document submitted for consideration by the Court. Plaintiff shall include with the original
paper to be filed with the Clerk of Court a certificate stating the date on which a true and correct
copy of any document was mailed to Defendants or their counsel. Fed. R. Civ. P. 5. “Every
pleading shall contain a caption setting forth the name of the court, the title of the action, [and]
the file number.” Fed. R. Civ. P. 10(a).
Plaintiff is charged with the responsibility of immediately informing this Court and
defense counsel of any change of address during the pendency of this action. Local Rule 11.1.
Plaintiff’s failure to notify the Court of a change in his address may result in dismissal of this
case.
Plaintiff has the responsibility for pursuing this case. For example, if Plaintiff wishes to
obtain facts and information about the case from Defendants, Plaintiff must initiate discovery.
See generally, Fed. R. Civ. P. 26, et seq. The discovery period in this case will expire 140 days
after the filing of the last answer. Local Rule 26.1. Plaintiff does not need the permission of the
Court to begin discovery, and Plaintiff should begin discovery promptly and complete it within
this time period. Local Rule 26.1. Discovery materials should not be filed routinely with the

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Clerk of Court; exceptions include: when the Court directs filing; when a party needs such
materials in connection with a motion or response, and then only to the extent necessary; and
when needed for use at trial. Local Rule 26.4.
Interrogatories are a practical method of discovery for incarcerated persons. See Fed. R.
Civ. P. 33. Interrogatories may be served only on a party to the litigation, and, for the purposes
of the instant case, this means that interrogatories should not be directed to persons or
organizations who are not named as Defendants. Interrogatories are not to contain more than
twenty-five (25) questions. Fed. R. Civ. P. 33(a). If Plaintiff wishes to propound more than
twenty-five (25) interrogatories to a party, Plaintiff must have permission of the Court. If
Plaintiff wishes to file a motion to compel, pursuant to Federal Rule of Civil Procedure 37, he
should first contact the attorneys for Defendants and try to work out the problem; if Plaintiff
proceeds with the motion to compel, he should also file a statement certifying that he has
contacted opposing counsel in a good faith effort to resolve any dispute about discovery. Fed. R.
Civ. P. 26(c); 37(a)(2)(A); Local Rule 26.7.
Plaintiff has the responsibility for maintaining his own records of the case. If Plaintiff
loses papers and needs new copies, he may obtain them from the Clerk of Court at the standard
cost of fifty cents ($.50) per page. If Plaintiff seeks copies, he should request them directly
from the Clerk of Court and is advised that the Court will authorize and require the
collection of fees from his prison trust fund account to pay the cost of the copies at the
aforementioned rate of fifty cents ($.50) per page.
If Plaintiff does not press his case forward, the court may dismiss it for want of
prosecution. Fed. R. Civ. P. 41; Local Rule 41.1.

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It is Plaintiff’s duty to cooperate fully in any discovery which may be initiated by
Defendants. Upon no less than five (5) days’ notice of the scheduled deposition date, the
Plaintiff shall appear and permit his deposition to be taken and shall answer, under oath or
solemn affirmation, any question which seeks information relevant to the subject matter of the
pending action. Failing to answer questions at the deposition or giving evasive or incomplete
responses to questions will not be tolerated and may subject Plaintiff to severe sanctions,
including dismissal of this case.
As the case progresses, Plaintiff may receive a notice addressed to “counsel of record”
directing the parties to prepare and submit a Joint Status Report and a Proposed Pretrial Order.
A plaintiff proceeding without counsel may prepare and file a unilateral Status Report and is
required to prepare and file his own version of the Proposed Pretrial Order. A plaintiff who is
incarcerated shall not be required or entitled to attend any status or pretrial conference which
may be scheduled by the Court.
ADDITIONAL INSTRUCTIONS TO PLAINTIFF REGARDING
MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT
Under this Court’s Local Rules, a party opposing a motion to dismiss shall file and serve
his response to the motion within fourteen (14) days of its service. “Failure to respond shall
indicate that there is no opposition to a motion.” Local Rule 7.5. Therefore, if Plaintiff fails to
respond to a motion to dismiss, the Court will assume that he does not oppose the Defendants’
motion. Plaintiff’s case may be dismissed for lack of prosecution if Plaintiff fails to respond to a
motion to dismiss.
Plaintiff’s response to a motion for summary judgment must be filed within twentyone (21) days after service of the motion. Local Rules 7.5, 56.1. The failure to respond to such a
motion shall indicate that there is no opposition to the motion. Furthermore, each material fact

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set forth in the Defendants’ statement of material facts will be deemed admitted unless
specifically controverted by an opposition statement. Should Defendants file a motion for
summary judgment, Plaintiff is advised that he will have the burden of establishing the existence
of a genuine dispute as to any material fact in this case. That burden cannot be carried by
reliance on the conclusory allegations contained within the complaint. Should the Defendants’
motion for summary judgment be supported by affidavit, Plaintiff must file counter-affidavits if
he desires to contest the Defendants’ statement of the facts. Should Plaintiff fail to file opposing
affidavits setting forth specific facts showing that there is a genuine dispute for trial, any factual
assertions made in Defendants’ affidavits will be accepted as true and summary judgment may
be entered against the Plaintiff pursuant to Federal Rule of Civil Procedure 56.
SO ORDERED and REPORTED and RECOMMENDED, this 4th day of January,
2016.

R. STAN BAKER
UNITED STATES MAGISTRATE JUDGE
SOUTHERN DISTRICT OF GEORGIA

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