Fulson v. Anderson et al

Filing 48

MEMORANDUM AND ORDER - IT IS HEREBY ORDERED that Allen's motion to dismiss (Doc. 24) is GRANTED in part and DENIED in part. Plaintiffs official-capacity claims are dismissed. In all other respects, the motion is denied. Signed by District Judge Catherine D. Perry on August 3, 2017. (MCB)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
NORTHERN DIVISION
ANDRE L. FULSON,
Plaintiff,
v.
TAMARA ANDERSON, et al.,
Defendants,

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No. 2:16-CV-78 CDP

MEMORANDUM AND ORDER
This matter is before me on defendant Larry Allen’s motion to dismiss
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. The motion is
granted in part and denied in part.
Background
Plaintiff brought this action under 42 U.S.C. § 1983, the Americans with
Disabilities Act, and state law against several prison officials and medical
personnel at the Northeast Correctional Center (“NECC”). Defendant Allen is the
Food Service Manager there.
Plaintiff officially designated his religion as Judaism. On July 17, 2015,
plaintiff and several other inmates requested religious meals. Those requests were
approved and were provided to Allen. The other inmates received their religious

meals within fourteen days of the requests. Plaintiff, however, did not receive his
meals until about forty days after his request was approved.
Plaintiff had previously filed a civil action against Allen’s wife and coworker, defendant Pasha Allen. Plaintiff alleged that Allen refused to provide him
religious meals along with the other inmates in retaliation for having filed the civil
action.
Standard
To state a claim under the Federal Rules of Civil Procedure, a complaint
must contain “a short and plain statement of the claim showing that the pleader is
entitled to relief.” Fed. R. Civ. P. 8(a)(2). “To survive a motion to dismiss, a
complaint must contain 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 pleading need
not include “detailed factual allegations,” but it is not sufficient to tender “naked
assertion[s]” that are “devoid of further factual enhancement.” Id. (internal
quotation marks omitted). A complaint must do more than allege “labels and
conclusions” or “a formulaic recitation of the elements of a cause of action.” Id.
Discussion
To state a prima facie case for First Amendment retaliation, plaintiff must
allege that he engaged in protected activity and that defendants, to retaliate for the
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protected activity, took adverse action against him that would chill a person of
ordinary firmness from engaging in that activity. See Revels v. Vincenz, 382 F.3d
870, 876 (8th Cir. 2004), cert. denied 546 U.S. 860 (2005).
Allen argues that plaintiff’s claim is moot because he eventually received a
kosher diet. The argument is meritless. “[B]y definition claims for past damages
cannot be deemed moot.” Taxpayers for the Animas-La Plata Referendum v.
Animas-La Plata Water Conservancy Dist., 739 F.2d 1472, 1479 (10th Cir. 1984).
Allen contends that plaintiff’s allegations amount to no more than a
formulaic recitation of the elements of a cause of action. I disagree. Plaintiff
alleges all three factual elements of a retaliation claim. He filed a civil action
against Pasha Allen. Allen took adverse action against plaintiff by refusing to
provide him with religious meals for forty days. And keeping a kosher diet is a
firm mandate of the Jewish faith; so refusing to provide a kosher diet could chill a
person of that faith from engaging in protected activity. As a result, plaintiff has
stated a plausible claim for retaliation against Allen in his individual capacity. For
this reason, Allen is not entitled to qualified immunity. E.g., Norman v. Schuetzle,
585 F.3d 1097, 1103 (8th Cir. 2009) (official not entitled to qualified immunity if
the “alleged conduct violated the [plaintiff’s] federal rights.”).
Finally, Allen is correct that plaintiff’s official-capacity claims are barred by
the Eleventh Amendment. See Kentucky v. Graham, 473 U.S. 159, 165-66 (1985);
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Murphy v. Arkansas, 127 F.3d 750, 754 (8th Cir. 1997). Therefore, those claims
are dismissed.
Accordingly,
IT IS HEREBY ORDERED that Allen’s motion to dismiss (Doc. 24) is
GRANTED in part and DENIED in part. Plaintiff’s official-capacity claims are
dismissed. In all other respects, the motion is denied.
Dated this 3rd day of August, 2017.

CATHERINE D. PERRY
UNITED STATES DISTRICT JUDGE

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