Toler v. Lotz et al

Filing 7

MEMORANDUM AND ORDER: IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in forma pauperis [Doc. 2] is GRANTED. IT IS FURTHER ORDERED that the Clerk shall issue process or cause process to issue upon the complaint as to defend ants Missouri Department of Mental Health, Southeast Missouri Mental Health Center, Sexual Offender Rehabilitation and Treatment Services, Dr. Jay Engelhart, Mary Tinker, Megan Allen, Brenda Swift, David Shmitt, Richard Russell, Sarah Krummel, Sue Fishbeck, and Brooke Higgins in their individual and official capacities. IT IS FURTHER ORDERED that said defendants shall reply to the complaint within the time provided by the applicable provisions of Rule 12(a) of the Federal Rules of Civil Pr ocedure. IT IS FURTHER ORDERED that said defendants shall file a response to plaintiff's motion for a preliminary injunction [Doc. 3] no later than fifteen days after they file their responsive pleading(s) to the complaint. IT IS FURTHER ORDER ED that, as to defendants Chuck Lotz and Janine Semar, the Clerk shall not issue process or cause process to issue, because the complaint is legally frivolous and fails to state a claim upon which relief may be granted. See 28 U.S.C. ' 1915(e )(2)(B). IT IS FURTHER ORDERED that, as to defendants Dr. Jay Engelhart, Mary Tinker, Megan Allen, Brenda Swift, David Shmitt, Richard Russell, Sarah Krummel, Sue Fishbeck, and Brooke Higgins, plaintiff's claims for the failure to provide Jew ish ritual practice items (Count III) are legally frivolous and fail to state a claim upon which relief may be granted. See 28 U.S.C. ' 1915(e)(2)(B). These claims are, however, sufficient to proceed against defendants Missouri Department of Mental Health and Southeast Missouri Mental Health Center, Sexual Offender Rehabilitation and Treatment Services. IT IS FURTHER ORDERED that plaintiff's claims for conspiracy and for the refusal to allow him to use his religious name (Count IV ) are legally frivolous and fail to state a claim upon which relief may be granted. See 28 U.S.C. ' 1915(e)(2)(B). A separate Order of Partial Dismissal shall accompany this Memorandum and Order.. Signed by District Judge Rodney W. Sippel on 2/2/16. (LGK)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
NORMAN NOAH TOLER,
Plaintiff,
v.
CHUCK LOTZ, et al.,
Defendants.

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No. 4:15-CV-1455-RWS

MEMORANDUM AND ORDER
This matter is before the Court on the application of Norman Noah Toler for
leave to commence this action without payment of the required filing fee [Doc. 2].
See 28 U.S.C. ' 1915(a). Upon consideration of the financial information provided
with the application, the Court finds that plaintiff is financially unable to pay any
portion of the filing fee. Therefore, plaintiff will be granted leave to proceed in
forma pauperis pursuant to 28 U.S.C. ' 1915(a). In addition, for the reasons set
forth below, the Court will order a partial issuance in this case.
28 U.S.C. ' 1915(e)
Pursuant to 28 U.S.C. ' 1915(e)(2)(B), the Court must dismiss a complaint
filed in forma pauperis if the action is frivolous, malicious, fails to state a claim upon
which relief can be granted, or seeks monetary relief from a defendant who is
immune from such relief. An action is frivolous if it "lacks an arguable basis in

either law or fact." Neitzke v. Williams, 490 U.S. 319, 328 (1989). An action is
malicious if it is undertaken for the purpose of harassing the named defendants and
not for the purpose of vindicating a cognizable right. Spencer v. Rhodes, 656 F.
Supp. 458, 461-63 (E.D.N.C. 1987), aff'd 826 F.2d 1059 (4th Cir. 1987).

An

action fails to state a claim upon which relief can be granted if it does not plead
Aenough facts to state a claim to relief that is plausible on its face.@ Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007).
To determine whether an action fails to state a claim upon which relief can be
granted, the Court must engage in a two-step inquiry. First, the Court must identify
the allegations in the complaint that are not entitled to the assumption of truth.
Ashcroft v. Iqbal, 129 S. Ct. 1937, 1950-51 (2009).

These include "legal

conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are]
supported by mere conclusory statements." Id. at 1949. Second, the Court must
determine whether the complaint states a plausible claim for relief. Id. at 1950-51.
This is a "context-specific task that requires the reviewing court to draw on its
judicial experience and common sense." Id. at 1950. The plaintiff is required to
plead facts that show more than the "mere possibility of misconduct." Id. The
Court must review the factual allegations in the complaint "to determine if they
plausibly suggest an entitlement to relief."

Id. at 1951.

When faced with

alternative explanations for the alleged misconduct, the Court may exercise its

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judgment in determining whether plaintiff's conclusion is the most plausible or
whether it is more likely that no misconduct occurred. Id. at 1950-52.
Moreover, in reviewing a pro se complaint under ' 1915(e)(2)(B), the Court
must give the complaint the benefit of a liberal construction. Haines v. Kerner, 404
U.S. 519, 520 (1972).

The Court must also weigh all factual allegations in favor of

the plaintiff, unless the facts alleged are clearly baseless. Denton v. Hernandez,
504 U.S. 25, 32 (1992).
The Complaint
Plaintiff, a resident at the Southeast Missouri Mental Health Center, Sexual
Offender Rehabilitation & Treatment Services ("SORTS") facility in Farmington,
Missouri, seeks declaratory and injunctive relief in this action brought pursuant to
the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §
2000cc et seq. Plaintiff names as defendants the Missouri Department of Mental
Health, SORTS, and the following eleven SORTS employees:

Chuck Lotz

(Chaplain), Janine Semar (Chairman of the Religious Accommodations Committee
and Resident Activities Coordinator), Dr. Jay Engelhart (Director of Treatment
Services), Mary Tinker (Property Manager), Megan Allen (Property Co-Manager),
Brenda Swift (Grievance Coordinator and Patient Advocate), David Shmitt (Chief
Operations Officer), Richard Russell (Security Director), Sarah Krummel (Clinical
Social Worker and “Hoctor 3 Treatment Team Member”), Sue Fishbeck (Head
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Nurse and “Hoctor 3 Treatment Team Member”), and Brooke Higgins (Clinical
Psychologist and “Hoctor 3 Treatment Team Member”).

Plaintiff is suing

defendants in both their individual and official capacities. He asserts that the
Missouri Department of Mental Health receives federal funds and that he “is not in a
prison, so as to be subject to the punitive restrictions of a prison environment.”
Plaintiff’s RLUIPA claims are for (1) failing to provide a kosher meal plan
(Count I); (2) preventing his access to Hebrew materials (Count II); (3) failing to
provide ritual practice items (Count III); (4) refusing to allow the use of his religious
name, “Noah” (Count IV); (5) and punishing him for having and using the Hebrew
language (Count V). In addition, plaintiff generally alleges that defendants acted
“as part of an active conspiracy to deny [him] his rights.”
More specifically, plaintiff alleges that he adheres to the Jewish faith and
notified defendants of his Jewish religious preference when he arrived at SORTS in
July 2014. He states that Hebrew is the language of the Jewish people, and Jewish
holy writings are written in Hebrew. He claims that fluency in Hebrew is a
fundamental aspect of Jewish religious exercise and that SORTS has implemented a
rule that no foreign languages are permitted. In addition, plaintiff claims that
SORTS “has a rule of general applicability not to provide kosher meals to Jewish
offenders.” Plaintiff states that since his arrival in 2014, he has been denied access

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to a kosher diet that complies with Jewish law. Plaintiff further claims that he has
been denied access to numerous other items used in practicing his faith, such as
kosher wine or kosher grape juice, challah, hand-washing cups, tefillin, tzitzit,
candles, and spices used to conclude the Shabbat. He states that his requests for
accommodation for “Jewish religious exercise” have all been denied.
Discussion
Section 3 of RLUIPA provides, in relevant part, that “[n]o government shall
impose a substantial burden on the religious exercise of a person residing in or
confined to an institution . . . even if the burden results from a rule of general
applicability,” unless the government establishes that the burden furthers “a
compelling governmental interest” and does so by “the least restrictive means.” 42
U.S.C. § 2000cc-1(a)(1)-(2). RLUIPA defines “religious exercise” to include “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).

“A person may assert a violation of

[RLUIPA] as a claim or defense in a judicial proceeding and obtain appropriate
relief against a government. 42 U.S.C. § 2000cc-2(a). By its terms, RLUIPA is to
be construed broadly in favor of protecting an inmate’s right to exercise his religious
beliefs. 42 U.S.C. § 2000cc-3(g).

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With regard to the named defendants in the case at bar, plaintiff alleges in
Count I that Swift “has ruled [his] complaints [are] ‘not a patient right,’” and that
Swift, Shmitt, and Engelhart have made no attempt to accommodate his requests for
kosher meals. Plaintiff claims that in refusing to provide a kosher meal plan, “they
have forced him to consume non-kosher food in violation of his religious beliefs.”
Plaintiff further claims that defendants’ actions substantially burden the exercise of
his faith and lack an underlying compelling governmental reason. Plaintiff's claims
against defendants Brenda Swift, David Shmitt, and Jay Engelhart are sufficient to
proceed at this time.
In Count II, plaintiff alleges that defendants Tinker, Allen, and Russell
refused to forward Jewish religious exercise texts to the Religious Accommodations
Committee to be reviewed for appropriateness. He also claims that defendants
“have been hit or miss as to whether or not they allow [him] access to Hebrew
language material,” and that on September 10, 2015, Engelhart issued “an email
directive,” instructing Krummel and Higgins to confiscate all of plaintiff’s “Jewish
religious exercise material that contained Hebrew,” which included the Jewish
Bible, the Five Books of the Torah, the Book of Psalms, and the Jewish Prayer Book,
as well as numerous other books plaintiff had previously received. Plaintiff also
claims that, as a result of Engelhart’s directive, “the recreational library was purged

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of all non-English material, not only religious practice material, but also American
Sign Language texts.” In addition, plaintiff summarily alleges that defendants Lotz
and Semar are “not qualified to evaluate Jewish religious exercise texts.” Plaintiff's
claims against defendants Mary Tinker, Megan Allen, Richard Russell, Sarah
Krummel, Brooke Higgins, and Jay Engelhart are sufficient to proceed at this time.
Plaintiff’s conclusory claims against defendants Chuck Lotz and Janine Semar are
legally frivolous and fail to state a claim under RLUIPA, and therefore, they will be
dismissed, without prejudice.
In Count III, plaintiff states that “Jewish religious exercise is accomplished
through a variety of rituals.” He lists a myriad of items he claims are necessary to
practicing various Jewish religious exercises and celebrations and complains that
“Respondents have denied [each] request.” Because plaintiff has failed to allege
any facts indicating how each of the named eleven individual SORTS defendants
personally participated in the alleged RLUIPA violations, his claims for the failure
to provide ritual practice items will be dismissed as to the individual SORTS
defendants, without prejudice, as legally frivolous and for failure to state a claims or
cause of action. Cf. Jeffers v. Gomez, 267 F.3d 895, 915 (9th Cir. 2001) (liability
for constitutional violations arises only upon a showing of personal participation
by defendant); Madewell v. Roberts, 909 F.2d 1203, 1208 (8th Cir. 1990)

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("Liability under section 1983 requires a causal link to, and direct responsibility
for, the alleged deprivation of rights."); see also Martin v. Sargent, 780 F.2d 1334,
1338 (8th Cir. 1985) (claim not cognizable under ' 1983 where plaintiff fails to
allege defendant was personally involved in or directly responsible for incidents
that injured plaintiff).

Plaintiff’s claims will, however, be allowed to proceed

against defendants Missouri Department of Mental Health and SORTS.
In Count IV, plaintiff summarily asserts that “Respondents” refuse to allow
him to be called “Noah” or to put “Noah” on his name badge.

He does not

explain how this substantially burdens and/or prevents him from practicing his
Jewish faith. As such, plaintiff’s claims for the refusal to allow the use of his
religious name will be dismissed, without prejudice, as legally frivolous and for
failure to state a claim or cause of action.
In Count V, plaintiff alleges that after he tried to send his rabbi a postcard
containing Hebrew handwriting that merely said, “happy birthday,” defendants
Krummel, Fishbeck, and Higgins issued him a conduct violation for “Lying;
Resident attempted to send post cards in a foreign language.” Fishbeck allegedly
told plaintiff “he would continue to be denied the Green privilege level due to his
advocacy of Jewish religious exercise.” Plaintiff claims that this substantially
burdened the exercise of his faith, and he was punished for attempting to seek

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accommodations.

In addition, plaintiff claims that defendants Tinker, Allen,

Russel, Shmitt, Engelhart, Krummel, Fishbeck, and Higgins were all involved in
either confiscating the postcard and/or ordering the conduct violation, and that
Engelhart “specifically ordered harsher treatment against [him], even after ordering
less restrictive treatment to another SORTS resident.”

Plaintiff’s claims are

sufficient to proceed against defendants Mary Tinker, Megan Allen, Richard
Russel, David Shmitt, Jay Engelhart, Sarah Krummel, Sue Fishbeck, and Brooke
Higgins.
Last, plaintiff's conclusory allegations that defendants were a “part of an
active conspiracy” are insufficient to support a conspiracy claim. See Mershon v.
Beasely, 994 F.2d 449, 451 (8th Cir. 1993) (plaintiff must allege more than the
summary allegation of a conspiracy). Plaintiff’s allegations are nothing more than
a “[t]hreadbare recital[] of a cause of action’s elements” and are not entitled to an
assumption of truth. Iqbal, 129 S. Ct. at 1949; see Twombly, 550 U.S. at 557.
In accordance with the foregoing,
IT IS HEREBY ORDERED that plaintiff's motion for leave to proceed in
forma pauperis [Doc. 2] is GRANTED.
IT IS FURTHER ORDERED that the Clerk shall issue process or cause
process to issue upon the complaint as to defendants Missouri Department of Mental

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Health, Southeast Missouri Mental Health Center, Sexual Offender Rehabilitation
and Treatment Services, Dr. Jay Engelhart, Mary Tinker, Megan Allen, Brenda
Swift, David Shmitt, Richard Russell, Sarah Krummel, Sue Fishbeck, and Brooke
Higgins in their individual and official capacities.
IT IS FURTHER ORDERED that said defendants shall reply to the
complaint within the time provided by the applicable provisions of Rule 12(a) of the
Federal Rules of Civil Procedure.
IT IS FURTHER ORDERED that said defendants shall file a response to
plaintiff’s motion for a preliminary injunction [Doc. 3] no later than fifteen days
after they file their responsive pleading(s) to the complaint.
IT IS FURTHER ORDERED that, as to defendants Chuck Lotz and Janine
Semar, the Clerk shall not issue process or cause process to issue, because the
complaint is legally frivolous and fails to state a claim upon which relief may be
granted. See 28 U.S.C. ' 1915(e)(2)(B).
IT IS FURTHER ORDERED that, as to defendants Dr. Jay Engelhart, Mary
Tinker, Megan Allen, Brenda Swift, David Shmitt, Richard Russell, Sarah
Krummel, Sue Fishbeck, and Brooke Higgins, plaintiff's claims for the failure to
provide Jewish ritual practice items (Count III) are legally frivolous and fail to state
a claim upon which relief may be granted. See 28 U.S.C. ' 1915(e)(2)(B). These

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claims are, however, sufficient to proceed against defendants Missouri Department
of Mental Health and Southeast Missouri Mental Health Center, Sexual Offender
Rehabilitation and Treatment Services.
IT IS FURTHER ORDERED that plaintiff's claims for conspiracy and for
the refusal to allow him to use his religious name (Count IV) are legally frivolous
and fail to state a claim upon which relief may be granted.

See 28 U.S.C.

' 1915(e)(2)(B).
A separate Order of Partial Dismissal shall accompany this Memorandum and
Order.
Dated this 2nd day of February, 2016.

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UNITED STATES DISTRICT JUDGE

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