Perfetto v. Jane Doe, et al

Filing 65

ORDER denying 48 Motion to Dismiss for Failure to State a Claim. So Ordered by Judge Paul J. Barbadoro.(jna)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE

Jonathan A. Perfetto
v.

Civil No. 14-cv-556-PB
Opinion No. 2016 DNH 110

Jonathan Plumpton, et al.

MEMORANDUM AND ORDER
Jonathan Perfetto, proceeding pro se, has brought claims
for damages against several current and former Hillsborough
County House of Corrections (“HCHC”) employees, based on the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”).
He has sued Captain Marc Cusson, Superintendent David Dionne,
former Superintendent James O’Mara, and two Jane Doe mailroom
clerks, all in their official capacities.
Defendants Cusson, Dionne, and O’Mara have moved, pursuant
to Federal Rule of Civil Procedure 12(b)(6), to dismiss
Perfetto’s RLUIPA claims.1

They argue that Perfetto’s claims

fail because the statute does not permit inmates to recover
damages on their RLUIPA claims.

They base their argument

primarily on cases from other jurisdictions in which courts
The Jane Doe defendants have not been served in this
matter, and the pending motion to dismiss was not filed on their
behalf.
1

rejected RLUIPA claims on sovereign immunity grounds.

Because I

determine that this case law is either distinguishable or
unpersuasive, I deny defendants’ motion.

I.

BACKGROUND

Perfetto, a Jehovah’s Witness and former HCHC inmate,
alleges that the defendants violated RLUIPA by enforcing a
prison policy that barred Perfetto from distributing religious
materials to other inmates.

The defendants’ actions, Perfetto

claims, substantially burdened his religious practice of
“preach[ing] the good news of God’s Kingdom.”
Alexis, No. 12-cv-393-JL, Doc. No. 11 at 9.

Perfetto v.
After preliminary

review, Magistrate Judge Johnstone determined that Perfetto had
adequately alleged a substantial burden on his religious
practice.

She therefore directed service of Perfetto’s RLUIPA

claims on defendants Cusson, Dionne, O’Mara, and the two
mailroom clerks, all in their official capacities.2

See Doc. No.

Perfetto initially filed his RLUIPA claims in Perfetto v.
Alexis, No. 12-cv-393-JL (“Perfetto I”), a case that was
voluntarily dismissed without prejudice. I have allowed
Perfetto’s current claims to proceed in this action and
incorporate by reference the facts supporting the claims
asserted in Perfetto I. In Perfetto I, Perfetto brought
additional RLUIPA claims, including individual capacity claims,
and sought injunctive relief. The court’s prior orders disposed
of those claims, and I do not address them here.
2
2

34 at 1-2.

II.

STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a plaintiff must allege
sufficient facts 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 claim is facially plausible if it provides “factual content
that allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”

Id.

This

plausibility standard “asks for more than a sheer possibility
that a defendant has acted unlawfully,” id., but “simply calls
for enough fact to raise a reasonable expectation that discovery
will reveal evidence” of wrongdoing.

Twombly, 550 U.S. at 556.

I employ a two-step approach in deciding a Rule 12(b)(6)
motion.

See Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 12

(1st Cir. 2011).

First, I screen the complaint for statements

that “merely offer legal conclusions couched as fact or
threadbare recitals of the elements of a cause of action.”

Id.

Perfetto’s current complaint also included an excessive
force claim against defendant Jonathan Plumpton. That claim has
been voluntarily dismissed with prejudice, and Plumpton has been
dropped as a defendant. See Doc. Nos. 62, 63. Accordingly,
only Perfetto’s RLUIPA damage claims remain.
3

(citations, internal punctuation, and alterations omitted).

I

then accept as true all non-conclusory factual allegations and
the reasonable inferences drawn therefrom, and determine whether
the claim is plausible.

Id.

Because Perfetto is proceeding pro

se, I construe his pleadings liberally.

See Erickson v. Pardus,

551 U.S. 89, 94 (2007).

III.

ANALYSIS

Defendants base their motion to dismiss almost exclusively
on cases in which courts dismissed plaintiffs’ RLUIPA damages
claims on sovereign immunity grounds.3

See Doc. No. 48-1 at 4-9.

Accordingly, I treat defendants as though they were asserting a
sovereign immunity defense.

Before turning to that argument,

however, I address two threshold issues: (1) whether RLUIPA’s
text permits a damage remedy, and (2) if so, whether plaintiffs
can bring RLUIPA damage claims against county employees in their
official capacities.

I begin with the statutory text.

RLUIPA requires courts to apply strict scrutiny to prison
Defendants argue in passing that Perfetto “has also failed
to establish the existence of” a substantial burden on his
religious practice. See Doc. No. 48-1 at 9. To the extent that
the defendants are arguing that Perfetto has not alleged
sufficient facts to support his RLUIPA claims, the defendants
have not adequately developed that argument. I therefore
decline to dismiss Perfetto’s claims on that basis.
4
3

policies that substantially burden an inmate’s religious
exercise.

See Spratt v. R.I. Dept. of Corrs., 482 F.3d 33, 42

n.14 (1st Cir. 2007) (noting RLUIPA’s “statutory requirement
that we apply strict scrutiny”).

Section 3 of RLUIPA provides

that “[n]o government shall impose a substantial burden on the
religious exercise” of an institutionalized person, unless the
government can show that the burden “is in furtherance of a
compelling governmental interest” and “is the least restrictive
means of furthering” that interest.

42 U.S.C. § 2000cc–1(a);

Sossamon v. Texas, 563 U.S. 277, 281 (2011).

Section 3 applies

“in any case” in which “the substantial burden is imposed in a
program or activity that receives Federal financial assistance.”
§ 2000cc–1(b)(1); Sossamon, 563 U.S. at 281-82.

“RLUIPA

provides greater protection to inmates' free-exercise rights
than does the First Amendment.”

Kuperman v. Wrenn, 645 F.3d 69,

79 (1st Cir. 2011); see also 42 U.S.C. § 2000cc–3(g) (requiring
that the statute be “construed in favor of a broad protection of
religious exercise”).
RLUIPA creates an express private right of action.

“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) (emphasis added).
5

Here,

“government” includes states, counties, municipalities, their
instrumentalities and officers, and persons acting under color
of state law.

See § 2000cc–5(4)(A); Sossamon, 563 U.S. at 282.

RLUIPA thus allows inmates to recover “appropriate relief,”
42 U.S.C. § 2000cc–2(a), but does not specify whether, and when,
money damages are “appropriate.”

When, however, Congress

creates a private right of action to enforce a federal law,
damages are presumptively available as an “appropriate” remedy,
unless Congress has clearly expressed its intention that damages
are not recoverable.

See Franklin v. Gwinnett Cty. Pub. Schs.,

503 U.S. 60, 73 (1992) (holding that compensatory damages are
available under Title IX’s implied right of action, because
Congress did not express an intention to limit available
remedies); Centro Familiar Cristiano Buenas Nuevas v. City of
Yuma, 651 F.3d 1163, 1168 (9th Cir. 2011) (allowing RLUIPA
damage claim to proceed against municipality, because RLUIPA
“speaks without any ‘clear direction’ excluding damages
relief”); Opulent Life Church v. City of Holly Springs, Miss.,
697 F.3d 279, 290 (5th Cir. 2012) (same).

By authorizing

plaintiffs to recover “appropriate relief,” RLUIPA “contains no
indication, much less clear direction, that it intends to
exclude a money damages remedy.”
6

Opulent Life Church, 697 F.3d

at 290.

Accordingly, RLUIPA’s text allows plaintiffs to pursue

damages claims against defendants who are subject to liability
under the Act.

See id.

RLUIPA was enacted pursuant to the Constitution’s spending
and commerce clauses.

See Sossamon, 563 U.S. at 281.

As a

result, although the First Circuit has reserved judgment on the
issue, other courts have determined that RLUIPA does not permit
damage claims against defendants who have been sued in their
individual capacities, and do not themselves receive federal
funds.

See Kuperman v. Wrenn, 645 F.3d 69, 78-79 (1st Cir.

2011) (reserving judgment on the issue and describing case law
in other circuits).

Perfetto has avoided this issue by suing

the defendants only in their official capacities.
An official-capacity suit is “in all respects other than
name, to be treated as a suit against the entity.”

Kentucky v.

Graham, 473 U.S. 159, 166 (1985); see Surprenant v. Rivas, 424
F.3d 5, 19 (1st Cir. 2005); Wood v. Hancock County Sheriff's
Dep't, 354 F.3d 57, 58 n. 1 (1st Cir. 2003).

Put another way,

“official-capacity suits generally represent only another way of
pleading an action against an entity of which an officer is an
agent.”

Monell v. New York City Dep't of Social Servs., 436

U.S. 658, 690 n.55 (1978).

Accordingly, “a string of Supreme
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Court cases holds that a suit against a government officer in
his or her official capacity binds the agency or other
governmental entity, not the officer personally.”

Am.

Policyholders Ins. Co. v. Nyacol Prods., Inc., 989 F.2d 1256,
1259 (1st Cir. 1993).

Therefore, for the purposes of analysis,

I treat Perfetto’s suit in this case as a suit against the
county itself.
Defendants do not take issue with the foregoing analysis.
Nor have they argued that Hillsborough County is not subject to
suit under RLUIPA because it does not receive federal funds.
Instead, they rely on cases from other jurisdictions in which
courts determined that sovereign immunity bars RLUIPA claims.
Defendants principally cite cases in which courts dismissed
RLUIPA damages claims on sovereign immunity grounds against
state, rather than county, employees.

See Doc. No. 48-1 at 8-9.

Sovereign immunity does not affect Perfetto’s claim here,
however, because the Supreme Court and First Circuit have
consistently held that counties, unlike states, do not enjoy
sovereign immunity.

See Metcalf & Eddy, Inc. v. Puerto Rico

Aqueduct & Sewer Auth., 991 F.2d 935, 939 (1st Cir. 1993)
(“[P]olitical subdivisions of a state, such as municipalities
and counties, do not lie within the Eleventh Amendment's
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reach.”); Kelley Bey v. Keen, No. 3:13-CV-1942, 2014 WL 3563475,
at *13 (M.D. Pa. July 17, 2014) (citing Mt. Healthy City Sch.
Dist. Bd. of Educ. v. Doyle, 429 U.S. 274, 280 (1977)).
Defendants also note that some courts have dismissed RLUIPA
claims for damages against county employees who were sued in
their official capacities.

See Doc. No. 48-1 at 9 (citing Scott

v. Brown, No. 1:11-CV-2514-TWT-JFK, 2012 WL 1080363, at *4 (N.D.
Ga. Jan. 31, 2012)).

Yet, as the defendants concede, these

courts often acted without acknowledging the general rule that
counties are not entitled to sovereign immunity.

See Doc. No.

48-1 at 8 (“Admittedly, a number of these cases have either
failed to set forth the distinction [between states and
counties] or have limited their logic to the application of the
Eleventh Amendment . . . .”); see also Amos v. Karol, No. 1:14CV-63 SNLJ, 2016 WL 492707, at *2 (E.D. Mo. Feb. 9, 2016); Sam
v. Fort Bend Cty. Sheriff's Office, No. CIV.A. H-12-3425, 2014
WL 637137, at *7 (S.D. Tex. Feb. 18, 2014); Sleighter v. Kent
Cty. Jail Admin., No. 1:12-CV-763, 2013 WL 5320203, at *5 (W.D.
Mich. Sept. 20, 2013); Schecter v. Bucks Cty., No. CIV.A. 111617, 2011 WL 2713796, at *3 (E.D. Pa. July 13, 2011).

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These

decisions are therefore unpersuasive.4
Finally, the Supreme Court’s interpretation of the term
“appropriate relief” in Sossamon v. Texas does not compel a
different result.

In Sossamon, the Court held that RLUIPA’s

authorization of “appropriate relief” is not “the unequivocal
expression of state consent” required to waive sovereign
immunity.

563 U.S. at 285.

Sossamon is thus “grounded on the

line of Eleventh Amendment authority requiring ‘clear
expression’ to abrogate the sovereign immunity of states from
damages claims.”

Centro Familiar Cristiano Buenas Nuevas, 651

F.3d at 1169; see Sossamon, 563 U.S. at 288; Lane v. Pena, 518
U.S. 187, 192 (1996) (explaining that a waiver of sovereign
immunity “will be strictly construed, in terms of its scope, in

In contrast, where courts acknowledge that sovereign
immunity does not protect county officials, they often conclude
that RLUIPA damage claims may be viable against county
employees. See, e.g., Pabon v. Cheshire Cty. Dep't of Corr.,
No. 15-CV-115-LM, 2015 WL 2092808, at *2 (D.N.H. May 5, 2015)
(approving report and recommendation); Kelley Bey, 2014 WL
3563475, at *13 (declining to dismiss RLUIPA claim against
county defendants sued in their official capacities, because
such claims are “not barred by the Eleventh Amendment”); Turner,
2013 WL 3272481, at *4 (reserving question); Aladimi v. Hamilton
Cty. Justice Ctr., No. 1:09-CV-398, 2012 WL 292587, at *1 (S.D.
Ohio Feb. 1, 2012), report and recommendation adopted, No. 1:09CV-398, 2012 WL 529585 (S.D. Ohio Feb. 17, 2012) (noting that it
“remains an open question” whether RLUIPA damages claim against
county employee in his official capacity is viable).
4

10

favor of the sovereign”); see also Haight v. Thompson, 763 F.3d
554, 571 (6th Cir. 2014) (Cole, C.J., concurring) (“Sossamon was
decided on narrow grounds specific to the legal framework at
issue in that case — namely, sovereign immunity.”).
That requirement does not apply here, though, because, as I
have explained, the defendants in this case are not entitled to
sovereign immunity.

Instead, to determine whether RLUIPA

authorizes damages claims against counties, the meaning of
“appropriate relief” turns on a different rule -- that federal
courts can award damages in support of a private right of action
absent “clear direction” that Congress intended to exclude a
damage remedy.
F.3d at 1169.

See Centro Familiar Cristiano Buenas Nuevas, 651
As explained above, Congress did not clearly bar

damage claims when it authorized plaintiffs to recover
“appropriate relief” on their RLUIPA claims.

Id.

The defendants thus have not supplied an adequate basis to
dismiss Perfetto’s RLUIPA claims.

Perfetto’s suit, however,

raises a question that the parties have not yet addressed -what standard governs counties’ liability under RLUIPA for the
alleged wrongful conduct of their employees?

In answering this

question, some courts have suggested that counties or
municipalities can be held vicariously liable under RLUIPA for
11

their employees’ actions.

See, e.g., Alderson v. Burnett, No.

1:07-CV-1003, 2008 WL 4185945, at *3 (W.D. Mich. Sept. 8, 2008)
(stating that “municipal entities can be held vicariously liable
under RLUIPA”); Layman Lessons, Inc. v. City of Millersville,
Tenn., 636 F. Supp. 2d 620, 643 (M.D. Tenn. 2008) (same);
Agrawal v. Briley, No. 02 C 6807, 2004 WL 1977581 (N.D. Ill.
Aug. 25, 2004) (“RLUIPA appears implicitly to authorize
respondeat superior liability against municipalities . . . .”).
Other courts disagree, concluding that vicarious liability is
unavailable under RLUIPA.

These courts reason that, as with

Section 1983 claims, a county or municipality cannot be liable
for a RLUIPA violation merely because it employs a tortfeasor.
See, e.g., Mahone v. Pierce Cty., No. C10-5847 RBL/KLS, 2011 WL
3298898, at *3 (W.D. Wash. May 23, 2011), report and
recommendation adopted, No. C10-5847 RBL/KLS, 2011 WL 3298528
(W.D. Wash. Aug. 1, 2011); Greenberg v. Hill, No. 2:07-CV-1076,
2009 WL 890521, at *3 (S.D. Ohio Mar. 31, 2009) (“[T]o establish
liability under RLUIPA (and Section 1983), a plaintiff must
prove, among other things, the personal involvement of each
defendant in the alleged violation”); see also Patel v. Bureau
of Prisons, 125 F. Supp. 3d 44, 55 (D.D.C. 2015) (concluding
that “pure vicarious liability . . . is not sufficient to state
12

a claim under [the Religious Freedom Restoration Act]”).
Because the parties do not address this question, I express
no opinion regarding the appropriate standard here.

IV.

CONCLUSION

For the reasons set forth above, defendants’ motion to
dismiss (Doc. No. 48) is denied.
SO ORDERED.
/s/Paul Barbadoro
Paul Barbadoro
United States District Judge
July 1, 2016
cc:

Jonathan A. Perfetto, pro se
John A. Curran, Esq.

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