Hughes v. Heimgartner et al

Filing 4

MEMORANDUM AND ORDER ENTERED: Plaintiff is given thirty (30) days in which to provide a complete, certified copy of his KDOC inmate account statement for the six-month period immediately preceding the filing of this complaint in support of his motio n to proceed without prepayment of fees. Within the same thirty-day period, plaintiff must show cause why the following claims should not be dismissed from the complaint: (1) his denial of equal protection claim; (2) his RLUIPA claim for damages, w ith prejudice; (3) his claim for compensatory damages under the Free Exercise Clause due to lack of physical injury; and (4) his claim for punitive damages under the Free Exercise Clause for failure to allege facts in support. Signed by Senior District Judge Sam A. Crow on 2/27/2013. (Mailed to pro se party Charley Hughes by regular mail.) (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
CHARLEY HUGHES,
Plaintiff,
v.

CASE NO.

12-3250-SAC

JAMES HEIMGARTNER,
et al.,
Defendants.
MEMORANDUM AND ORDER
This pro se civil complaint was filed pursuant to 42 U.S.C. §
1983 by an inmate of the El Dorado Correctional Facility in El Dorado,
Kansas (EDCF).

Plaintiff alleges that the Warden and Chaplain at

the EDCF denied his request for Halal meals1 in segregation, and that
this violated his rights under the Equal Protection Clause, the First
and

Fourteenth

Amendments,

and

the

Religious

Land

Use

and

Institutionalized Persons Act (RLUIPA), 42 U.S.C. §§ 2000cc–1, et
seq.

Mr.

Hughes

is

required

to

provide

adequate

financial

information in support of his motion to proceed without prepayment
of fees, and given time to show cause why portions of his complaint

1

As the Tenth Circuit Court of Appeals recently explained:
There are varying Islamic dietary traditions among Muslims, some more
strict than others. According to the Islamic Food and Nutrition
Council of America (IFANCA) and Islamic Services of America (ISA),
a “halal,” or “lawful” diet, prohibits items deemed “haram” (or
“unlawful”), including pork and its by-products, animals improperly
slaughtered or killed, alcohol and intoxicants, blood and blood
by-products, and foods contaminated with haram products.

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1313 (10th Cir. 2010).

1

should not be dismissed.

FACTUAL BACKGROUND & CLAIMS
As the factual background for his complaint, Mr. Hughes alleges
as follows.

On May 7, 2012, he sent a form 9 to the “Chaplain

Department” asking “to receive the Halal Meal that Muslims in general
population” (GP) receive during the Islamic feast of “Eid UL FITR
(completion of the Ramadan Fast).”

The chaplain informed plaintiff

that Muslims in segregation do not get the same privileges as Muslims
in GP and he would not be receiving the Halal Meal.2

Plaintiff names

as defendants James Heimgartner, Warden, EDCF, and (fnu) Phelan,
Chaplain, EDCF, in both their individual and official capacities.
He alleges that defendant Heimgartner was acting under color of state
law, which he explains by quoting the Fourteenth Amendment and
stating that Heimgartner violated this constitutional provision “by
rules he set for prisoners in segregation.”

With respect to

defendant Phelan, plaintiff explains that Phelan acted under color
of state law by denying them “holy day meals.”
Plaintiff alleges that he filed a grievance requesting Halal
meals while in segregation that was denied by the chaplain, the

2
Plaintiff has clearly limited his allegations to a short and plain statement
of the underlying facts. He has filed a Memorandum of Law in Support in which
he generally discusses RLUIPA provisions and various cases on religious freedom
and the First Amendment and asserts that Congress passed the Religious Freedom
Restoration Act and the RLUIPA to provide “heightened protection for religious
exercise in prison.” He does not refer to facts underlying his claim in his
memorandum and discuss how the legal provisions he cites apply to those facts.

2

Warden, and the Secretary of Corrections.

He thus alleges that he

has exhausted prison administrative remedies.
Plaintiff generally claims that defendants’ refusal to provide
a Halal Meal to Muslims in segregation is “a substantial burden on
our exercise of religious beliefs” as it creates “pressure on (them)
to consume meals that do not conform” to Islamic Law.

As Count I,

he claims that Equal Protection was violated “by the facility
denying” equal treatment to Muslims in segregation.

As Count II,

he claims violation of the “Free Exercise Clause” that protects his
right to practice his religion.
Mr. Hughes seeks “money damages including punitive damages” and
a

declaratory

judgment.

He

also

seeks

an

injunction

and

specifically requests a Halal Meal consistent with “our sincerely
held religious beliefs” during Eid-FITR while in segregation.

FILING FEE
The statutory fee for filing a civil rights complaint in federal
court is $350.00.

Plaintiff has filed a Motion to Proceed without

Prepayment of Fees (Doc. 2).

However, the financial information

provided in support of the motion is inadequate.

28 U.S.C. § 1915

requires that a prisoner seeking to bring a civil action without
prepayment of fees submit, in addition to his affidavit, a “certified
copy

of

the

trust

fund

account

statement

(or

institutional

equivalent) for the prisoner for the 6-month period immediately
3

preceding the filing” of the action “obtained from the appropriate
official of each prison at which the prisoner is or was confined.”
28 U.S.C. § 1915(a)(2).

Mr. Hughes has filed two prior civil rights

actions in this court, and is aware of the financial information that
is required by federal law.

In his last case, he submitted the

appropriate certified Kansas Department of Corrections Inmate
Account Statement.

The current financial records that he has

submitted in this case are not certified.

Nor are they complete

statements of his inmate account as they show nothing more than the
beginning balance in his account for 5 of the requisite 6 months.
Plaintiff is required to obtain and submit the proper KDOC certified
statement of his inmate account transactions for the appropriate
six-month period.

If he fails to comply with this order within the

allotted time, this action may be dismissed without further notice.

SCREENING
Because Mr. Hughes is a prisoner, the court is required by
statute to screen his complaint and to dismiss the complaint or any
portion thereof that is frivolous, fails to state a claim on which
relief may be granted, or seeks relief from a defendant immune from
such

relief.

1915(e)(2)(B).

28

U.S.C.

§

1915A(a)

and

(b);

28

U.S.C.

§

“To state a claim under § 1983, a plaintiff must

allege the violation of a right secured by the Constitution and laws
of the United States, and must show that the alleged deprivation was
4

committed by a person acting under color of state law.”

West v.

Atkins, 487 U.S. 42, 48-49 (1988)(citations omitted); Northington
v. Jackson, 973 F.2d 1518, 1523 (10th Cir. 1992).

A court liberally

construes a pro se complaint and applies “less stringent standards
than formal pleadings drafted by lawyers.”
U.S. 89, 94 (2007).

Erickson v. Pardus, 551

The court also accepts all well-pleaded

allegations in the complaint as true.
910, 913 (10th Cir. 2006).

Anderson v. Blake, 469 F.3d

However, the court “will not supply

additional factual allegations to round out a plaintiff’s complaint
or construct a legal theory on a plaintiff’s behalf.”

Whitney v.

New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997).
litigant’s

“conclusory

allegations

without

A pro se

supporting

factual

averments are insufficient to state a claim upon which relief can
be based.”

Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991).

The complaint must offer “more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action.”
Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007).

Bell

The court has

screened plaintiff’s complaint with the foregoing standards in mind
and finds the following deficiencies.

FAILURE TO STATE EQUAL PROTECTION CLAUSE CLAIM
Plaintiff has not alleged facts in his complaint to establish
the essential elements of a denial of equal protection claim.

“Equal

protection is essentially a direction that all persons similarly
5

situated should be treated alike.”

Fogle v. Pierson, 435 F.3d 1252,

1260 (10th Cir.), cert. denied, 549 U.S. 1059 (2006).

In order to

succeed on an equal protection claim, Mr. Hughes must allege that
he was “similarly situated” to the Muslim inmates in GP, and that
the difference in treatment was not “reasonably related to legitimate
penological interests.”

Fogle, 435 F.3d at 1261 (citing Barney v.

Pulsipher, 143 F.3d 1299, 1312 (10th Cir. 1998); Turner v. Safley,
482 U.S.78, 89 (1987)); see also Rider v. Werholtz, 548 F.Supp.2d
1188 (D.Kan. 2008)(citing Riddle v. Mondragon, 83 F.3d 1197, 1207
(10th Cir. 1996)).
Plaintiff alleges no facts showing that he is or was “similarly
situated” to Muslim inmates in GP at the EDCF.

A segregated inmate

is “by definition, not similarly situated to general population
inmates during his time in administrative segregation.”
F.3d at 1261.

Fogle, 435

Nor does plaintiff allege facts to show that the

challenged “difference in treatment” between Muslim inmates in
segregation and those in GP “was not ‘reasonably related to
legitimate penological interests.’”
at 89).

Id. (quoting Turner, 482 U.S.

There is a presumption in favor of validity of prison

officials’ disparate treatment.

Hill v. Pugh, 75 Fed. Appx. 715,

720 (10th Cir. 2003)(unpublished).3

Furthermore, plaintiff does not

allege facts suggesting that he was treated differently from other
inmates because of his religion or some other suspect classification.
3
Unpublished opinions are cited herein for persuasive value and not as binding
precedent. See Fed.R.App.P. 32.1 and 10th Cir.R. 32.1.

6

Rather, he alleges disparate treatment based solely upon his being
housed in segregation.

The court finds that plaintiff’s denial of

equal protection allegations are nothing “more than labels and
conclusions, and a formulaic recitation of the elements of a cause
of action.”

Ashcroft, 556 U.S. at 678 (“Threadbare recitals of the

elements of a cause of action, supported by mere conclusory
statements, do not suffice.”).

FAILURE TO STATE A CLAIM FOR DAMAGES
Plaintiff contends that the defendants’ alleged acts violated
his rights under the United States Constitution to freely exercise
his religion.4

He also claims that they violated his rights under

the Religious Land Use and Institutionalized Persons Act (RLUIPA).5

4
“Under the First and Fourteenth Amendments, inmates are entitled to the
reasonable opportunity to pursue their sincerely-held religious beliefs. What
constitutes a ‘reasonable opportunity’ is determined in reference to legitimate
penological objectives.” The Tenth Circuit Court of Appeals “recognizes that
prisoners have a constitutional right to a diet conforming to their religious
beliefs.” Beerheide v. Suthers, 286 F.3d 1179, 1185 (10th Cir. 2002)(citing
LaFevers v. Saffle, 936 F.2d 1117, 1119-20 (10th Cir. 1991).
They have
specifically held that the failure to accommodate a prisoner’s religious meal
requirements during Ramadan because he was in segregation violated his First
Amendment right to freely exercise his religion. Makin v. Colorado Dept. of
Corrections, 183 F.3d 1205, 1215 (10th Cir. 1999).
5

In relevant part, RLUIPA provides that:
No government shall impose a substantial burden on the religious
exercise of a person residing in or confined to an institution . .
. unless the government demonstrates that imposition of the burden
on that person(1)

is in furtherance of a compelling governmental interest; and

(2)
is the least restrictive means of furthering that compelling
governmental interest.

7

Plaintiff is not entitled to damages under RLUIPA.

In Sossaman v.

Texas, ___U.S.___, 131 S.Ct. 1651 (2011), the United States Supreme
Court held that states did not waive their Eleventh Amendment
sovereign immunity to suits for money damages under the RLUIPA, and
as a consequence money damages are not available as a private remedy
for violations of RLUIPA.

As a consequence, a plaintiff may not

recover damages under RLUIPA from defendant state employees acting
in their official capacities.

This is because “a suit against a

state official in his or her official capacity is not a suit against
the official but rather is a suit against the official’s office;”
and “[a]s such, it is no different from a suit against the State
itself.”

Will v. Michigan Dep’t of State Police, 491 U.S. 58, 71

(1989).

Accordingly, Eleventh Amendment immunity bars plaintiff’s

claim for money damages under RLUIPA against defendants for acts
taken in their official capacities.
The Tenth Circuit has also recently held that there is no cause
of action under RLUIPA against individual defendants in their
individual capacities.

Stewart v. Beach, 701 F.3d 1322, 1333-35

(10th Cir. 2012); see also Sharp v. Johnson, 669 F.3d 144, 153-55 (3rd
Cir.), cert. denied, 133 S.Ct. 41 (2012); Nelson v. Miller, 570 F.3d
42 U.S.C. § 2000cc–1(a). “Thus, to proceed with his RLUIPA claim”, Mr. Hughes
must demonstrate that “he wishes to engage in (1) a religious exercise (2) motivated
by a sincerely held belief, which exercise (3) is subject to a substantial burden
imposed by the government.” Abdulhaseeb, 600 F.3d at 1312. The issue is not
whether the lack of a halal diet substantially burdens the religious exercise of
any Muslim prisoner in EDCF segregation, as plaintiff sometimes couches his claim,
but whether it substantially burdened plaintiff’s “own exercise of his sincerely
held religious beliefs.” Id. at 1314.

8

868, 885-89 (7th Cir. 2009); Rendelman v. Rouse, 569 F.3d 182, 184-189
(4th Cir. 2009)(citing Pennhurst State School & Hospital v. Halderman,
451 U.S.1, 17 (1981)); Boles v. Neet, 402 F.Supp.2d 1237, 1241
(D.Colo. 2005), aff’d, 486 F.3d 1177 (10th Cirl. 2007); Ciempa v.
Jones, 745 F.Supp.2d 1171, 1198 (N.D. Okla. 2010).

Accordingly,

plaintiff’s claims for damages under RLUIPA are subject to being
dismissed with prejudice.
Plaintiff fails to state sufficient facts to support a claim
for compensatory damages under the Free Exercise Clause.

This is

because federal law prohibits prisoners from bringing federal
actions “for mental or emotional injury suffered while in custody
without a prior showing of physical injury.”

42 U.S.C. § 1997e(e).

The Tenth Circuit has held that this limitation on recovery applied
to a plaintiff’s First Amendment claim that prison officials denied
him a Kosher diet (Ciempa, 745 F.Supp.2d at 1201)(citing Searles v.
Van Bebber, 251 F.3d 869, 876-77 (10th Cir. 2001)) and to claims for
actual or compensatory damages.

Searles, 251 F.3d at 879, 881; see

also, Sisney v. Reisch, 674 F.3d 839, 843 (8th Cir.), cert. denied,
133 S.Ct. 359 (2012); Nasious v. Robinson, 2010 WL 1268135, *8, n.6
(D.Colo. Feb. 17, 2010)(unpublished), aff’d in part dismissed in
part, 396 Fed.Appx. 526 (10th Cir. Sept. 29, 2010).

Mr. Hughes has

not described any physical injury caused by the alleged deprivations
of his constitutional rights.

Accordingly, his claims for actual

or compensatory damages are subject to being dismissed unless he
9

presents additional facts showing a prior physical injury.
Plaintiff baldly claims a right to relief in the form of punitive
damages.

Punitive damages are available in a § 1983 lawsuit.

However, Mr. Hughes has failed to allege any facts that would entitle
him to a punitive damages award.

Punitive damages “are to be awarded

only when ‘the defendant’s conduct is shown to be motivated by evil
motive

or

intent,

or

when

it

involves

reckless

or

callous

indifference to the federally protected rights of others.’”

Jolivet

v. Deland, 966 F.2d 573, 577 (10th Cir. 1992)(quoting Smith v. Wade,
461 U.S. 30, 56 (1983)); Ciempa, 745 F.Supp.2d at 1201; Nasious, 2010
WL 1268135 at *8, n. 6 (citations omitted); see also Patel v. Wooten,
264 Fed.Appx. 755, 760 (10th Cir. 2008)(unpublished)(determining,
in the First Amendment context, that prison officials’ actions did
not “rise to the level of evil intent or reckless or callous
indifference to sustain a jury award of punitive damages”)).

Mr.

Hughes describes no act on the part of either defendant that evinces
reckless or callous indifference or evil intent.

Unless he alleges

additional facts showing a culpable motive on the part of both
defendants, his claim for punitive damages is subject to dismissal.
If plaintiff’s claims for “damages including punitive” are
dismissed, this complaint may proceed upon his claims for declaratory
and

injunctive

relief

against

10

defendants

in

their

official

capacities under RLUIPA6 and against defendants in their individual
and official capacities under the Free Exercise Clause.7
IT IS THEREFORE BY THE COURT ORDERED that plaintiff is given
thirty (30) days in which to provide a complete, certified copy of
his

KDOC

inmate

account

statement

for

the

six-month

period

immediately preceding the filing of this complaint in support of his
motion to proceed without prepayment of fees.
IT IS FURTHER ORDERED that within the same thirty-day period
plaintiff must show cause why the following claims should not be
dismissed from the complaint: (1) his denial of equal protection
claim; (2) his RLUIPA claim for damages, with prejudice; (3) his claim
for compensatory damages under the Free Exercise Clause due to lack
of physical injury; and (4) his claim for punitive damages under the
Free Exercise Clause for failure to allege facts in support.
IT IS SO ORDERED.
Dated this 27th day of February, 2013, at Topeka, Kansas.

6

See Nasious, 2010 WL at 1268135; Boles, 402 F.Supp.2d at 1240-41
(“Appropriate relief” under RLUIPA is limited to injunctive or declaratory
relief.).
7

State officials acting in their official capacities are not “persons” that
can be sued under 42 U.S.C. § 1983.
Will, 491 U.S. at 71.
However,
“official-capacity actions for prospective relief are not treated as actions
against the State.” Kentucky v. Graham, 473 U.S. 159, 167 n. 14 (1985); see also
Ex Parte Young, 209 U.S. 123 (1908). It follows that the doctrine of sovereign
immunity does not bar plaintiff’s claim for prospective non-damages relief against
defendants in their official capacities.

11

s/Sam A. Crow
U. S. Senior District Judge

12