ZOLONDEK v. STATE OF NEVADA et al

Filing 12

ORDER Granting 6 Motion to Dismiss. Plaintiff Dennis Zolondeks Complaint isDISMISSED. Signed by Judge Lloyd D. George on 8/29/2011. (Copies have been distributed pursuant to the NEF - SLR)

1
2
3
4
5
6
7

UNITED STATES DISTRICT COURT

8

DISTRICT OF NEVADA

9
10

DENNIS ZOLONDEK,

11

Plaintiff,

12

v.

13

Case No. 2:10-cv-01947-LDG (GWF)

STATE OF NEVADA, THE NEVADA
ex rel. DEPARTMENT OF
CORRECTIONS, et al.,

14
15

ORDER

Defendants.

16
17

The plaintiff, Dennis Zolondek, a former inmate, alleges that the defendants, the

18

State of Nevada ex rel. the Nevada Department of Corrections (NDOC), Glenn Whorton

19

(the former director of NDOC), and Howard Skolnick (current director of NDOC), failed to

20

serve him a kosher diet for a portion of his incarceration. The defendants move to dismiss

21

the suit (#6), which motion Zolondek opposes (#9).

22

Motion to Dismiss

23

The defendant’s motion to dismiss, brought pursuant to Fed. R. Civ. P. 12(b)(6),
ts'

24

challenges whether the plaintiff’s complaint states “a claim upon which relief can be

25

granted.” In ruling upon this motion, the court is governed by the relaxed requirement of

26

Rule 8(a)(2) that the complaint need contain only “a short and plain statement of the claim

1

showing that the pleader is entitled to relief.” As summarized by the Supreme Court, a

2

plaintiff must allege sufficient factual matter, accepted as true, “to state a claim to relief that

3

is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

4

Nevertheless, while a complaint “does not need detailed factual allegations, a plaintiff’s

5

obligation to provide the ‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels

6

and conclusions, and a formulaic recitation of the elements of a cause of action will not do.”

7

Id., at 555 (citations omitted). In deciding whether the factual allegations state a claim, the

8

court accepts those allegations as true, as “Rule 12(b)(6) does not countenance . . .

9

dismissals based on a judge’s disbelief of a complaint’s factual allegations.” Neitzke v.

10

Williams, 490 U.S. 319, 327 (1989). Further, the court “construe[s] the pleadings in the

11

light most favorable to the nonmoving party.” Outdoor Media Group, Inc. v. City of

12

Beaumont, 506 F3.d 895, 900 (9th Cir. 2007).

13

However, bare, conclusory allegations, including legal allegations couched as

14

factual, are not entitled to be assumed to be true. Twombly, 550 U.S. at 555. “[T]he tenet

15

that a court must accept as true all of the allegations contained in a complaint is

16

inapplicable to legal conclusions.” Ashcroft v. Iqbal 556 U.S.

17

(2009). “While legal conclusions can provide the framework of a complaint, they must be

18

supported by factual allegations.” Id., at 1950. Thus, this court considers the conclusory

19

statements in a complaint pursuant to their factual context.

20

, 129 S.Ct. 1937, 1949

To be plausible on its face, a claim must be more than merely possible or

21

conceivable. “[W]here the well-pleaded facts do not permit the court to infer more than the

22

mere possibility of misconduct, the complaint has alleged–but it has not ‘show[n]’–‘that the

23

pleader is entitled to relief.” Id., (citing Fed. R. Civ. Proc. 8(a)(2)). Rather, the factual

24

allegations must push the claim “across the line from conceivable to plausible.” Twombly.

25

550 U.S. at 570. Thus, allegations that are consistent with a claim, but that are more likely

26

explained by lawful behavior, do not plausibly establish a claim. Id., at 567.
2

1

Background

2

Zolondek alleges that he was incarcerated at High Desert State Prison from July

3

2008 through December 2008. Prior to his incarceration, he informed officials at High

4

Desert that he would require a kosher diet during his incarceration. During his

5

incarceration, he made repeated requests using “kite” forms for kosher meals. He did not

6

receive kosher meals until shortly before his release.

7

Zolondek alleges three claims arising from the denial of kosher meals. First,

8

pursuant to 42 U.S.C. §1983, he alleges the denial of kosher meals violated his First,

9

Eighth, and Fourteenth Amendment constitutional rights. Second, he claims the denial of

10

kosher meals imposed a substantial burden on exercising his religion in violation of the

11

Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.

12

§2000cc et seq. Third, he alleges that the defendants intentionally inflected emotional

13

distress by denying him the kosher meals.

14

Analysis - Failure to Exhaust

15

The defendants argue that the entire suit must be dismissed pursuant to §42 U.S.C.

16

§1997e(a) as the defendant did not exhaust his grievances fully through the prison

17

administrative grievance process before filing this suit. Section 1997e(a) requires that a

18

prisoner filing a suit must first exhaust his administrative remedies. Zolondek alleges that

19

he was released from prison prior to the date he filed this suit. Accepting Zolondek’s

20

allegation as accurate, he was not a prisoner when he filed this suit. Accordingly,

21

§1997e(a) does not govern. Zolondek was not required to exhaust his administrative

22

remedies before filing this suit. See Talamantes v. Leyva, 575 F.3d 1021, 1024 (9th Cir.

23

2009).

24

The defendants further argue that, pursuant to Nev.Rev.Stat. 41.0322, Zolondek’s

25

failure to exhaust his administrative remedies precludes him from maintaining his state law

26

claim for intentional infliction of emotional distress. Section 41.0322 requires that any
3

1

“person who is or was in the custody of the Department of Corrections” must exhaust his

2

administrative remedies pursuant to Nev. Rev. Stat. 209.243 before proceeding with a tort

3

claim pursuant to Nev. Rev. Stat. §41.031. Pursuant to §209.243, a person must file an

4

administrative claim with NDOC within six months of the alleged loss. Pursuant NDOC’s

5

Administrative Regulation 740, the administrative grievance procedure involves one

6

informal level of review and two formal levels of review. Zolondek alleges that he filed

7

repeated “kites” requesting kosher meals, but does not allege that he pursued his claim

8

through the two formal levels of review. Zolondek does not dispute that he did not pursue

9

his informal complaints through the two formal levels of review. The Court will dismiss

10

Zolondek’s state law claim for intentional infliction of emotional distress, as he has alleged

11

that he was a person who was incarcerated, he has alleged a state-law tort that occurred

12

while he was incarcerated, and he has not alleged that he exhausted his administrative

13

remedies as to that state-law tort that occurred while he was incarcerated.

14

RLUIPA Claim

15

Zolondek cannot maintain a claim under RLUIPA for monetary damages. The Ninth

16

Circuit has recently held that RLUIPA does not authorize monetary damages against

17

defendants in their official capacities. Holley v. Cal. Dep't of Corrections, 599 F.3d 1108,

18

1112 (9th Cir.2010). Although the Ninth Circuit has not ruled on the issue, courts in this

19

District have followed the Eleventh, Fifth, Fourth, and Seventh Circuits in holding that state

20

officials cannot be held liable in their individual capacities under RLUIPA. See Burriola v.

21

State of Nevada, 2010 WL 2326118 *13 (D.Nev.2010) (citing Smith v. Allen, 502 F.3d 1255

22

(11th Cir.2007); Sossamon v. Lone Star State of Texas, 560 F.3d 316, 325 (5th Cir.2009);

23

Rendelman v. Rouse, 569 F.3d 182, 184 (4th Cir.2009); Nelson v. Miller, 570 F.3d 868,

24

883–885 (7th Cir.2009)). Accordingly, the Court will dismiss Zolondek’s RLUIPA claim.

25
26
4

1

Section 1983 Claim

2

The United States Supreme Court has held that state officials cannot be sued in

3

their official capacity since a state is not a "person" under 42 U.S.C. § 1983 and an official

4

capacity suit against a state official is no different from a suit against the state itself. Will v.

5

Michigan Dept. of State Police, 491 U.S. 58, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989). The

6

Supreme Court limited this holding, noting that a state official is a "person" under § 1983 if

7

the official-capacity action is for prospective relief. Id. at 71, n. 10; Cabrera v. Martin, 973

8

F.2d 735, 741, (9th Cir. 1992).

9

The Supreme Court further clarified that a state official is a "person" under § 1983

10

when the suit is brought against him or her in an individual capacity. Hafer v. Melo, 502

11

U.S. 21 (1991). Whether a suit against a state official is an official-capacity suit, or an

12

individual-capacity suit, is determined by "reference to the capacity in which the state

13

officer is sued, not the capacity in which the officer inflicted the alleged injury." Hafer, 502

14

U.S. at 26.

15

Zolondek is not seeking prospective relief. Further, he alleges that he has been

16

released from prison, and acknowledges that he began receiving kosher meals before his

17

release from prison. As such, Zolondek cannot obtain prospective relief against any of the

18

defendants. Accordingly, the Court will dismiss Zolondek’s §1983 claim against Nevada

19

and against the individual defendants to the extent that he sues them in their official

20

capacity.

21

To maintain an individual-, or personal-, capacity suit, a plaintiff must show that the

22

state official was personally involved in the deprivation of his federal rights. In Kentucky v.

23

Graham, 473 U.S. 159, 163 (1985), the Supreme Court unraveled "once again the

24

distinctions between personal- and official-capacity suits." Official-capacity suits are

25

"`another way of pleading an action against an entity of which an officer is an agent.'" Id. at

26

165 (quoting Monell v. New York City Dept. of Social Services, 436 U.S. 658, 690, n. 55,
5

1

(1978)). To establish the liability of a governmental entity under § 1983, the plaintiff must

2

show the entity itself was a moving force behind the constitutional violation. "[T]hus, in an

3

official-capacity suit the entity's 'policy or custom' must have played a part in the violation of

4

federal law." Id.

5

In contrast, an individual-capacity suit seeks to hold a state officer liable "for actions

6

he takes under color of state law." Id. at 165 (emphasis added). "[T]o establish personal

7

liability in a § 1983 action, it is enough to show that the official, acting under color of state

8

law, caused the deprivation of a federal right." Id. at 166. Liability cannot be established

9

on a theory of respondeat superior. Monell, supra; Polk County v. Dodson, 454 U.S. 312,

10

325, (1981). Absent an official's participation or direction in the violation of a plaintiff's

11

constitutional rights, he cannot be held personally liable in an individual-capacity suit under

12

§ 1983. Ybarra v. Reno Thunderbird Mobile Home Village, 723 F.2d 675, 680 (9th Cir.

13

1984). Thus, to state a claim, a plaintiff must allege facts, not conclusions, showing the

14

personal involvement of a defendant. Conversely, a plaintiff fails to state a claim by

15

asserting that a defendant is liable because he or she is the supervisor of another.

16

Zolondek argues that he has clearly alleged that each of the individual defendants

17

was or currently is the director of the Nevada Department of Prisons. While Zolondek is

18

correct that he has alleged this fact, this fact is insufficient to permit an inference that either

19

of them personally participated in or directed the violation of his constitutional rights.

20

Zolondek argues that the Nevada Department of Corrections displayed a pattern of

21

denying kosher meals, and that the individual defendants had ultimate control over this

22

policy. The argument fails for several reasons. First, Zolondek did not allege these facts in

23

his complaint. Second, even if he had alleged these facts, they would permit an inference

24

that the individual defendants are liable in an official capacity suit for prospective relief. As

25

noted, however, Zolondek cannot maintain an official capacity suit nor obtain prospective

26

relief as he has been released from incarceration after he began receiving kosher meals.
6

1

Accordingly, the Court will dismiss Zolondek’s §1983 claim against the individual

2

defendants to the extent that he sues them in their personal capacity.

3

Therefore, for good cause shown,

4

THE COURT ORDERS that Defendants’ Motion to Dismiss (#6) is GRANTED.

5

THE COURT FURTHER ORDERS that Plaintiff Dennis Zolondek’s Complaint is

6

DISMISSED.

7
8

DATED this ______ day of August, 2011.

9
10

Lloyd D. George
United States District Judge

11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
7