McIntosh v. United States of America et al
OPINION & ORDER re: 38 MOTION to Dismiss filed by United States of America. For the reasons discussed herein, the Government's Motion To Dismiss is granted. Plaintiff's FTCA claims are dismissed without prejudice, and al l other claims against the Government are dismissed with prejudice. If Plaintiff wishes to file an Amended Complaint, he must do so within 20 days of the date of this Opinion & Order. Failure to do so might result in dismissal of this case. Plaintiff should include within that Amended Complaint any changes to correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. The Amended Complaint will replace, not supplement, the original complaint. The Amended Com plaint must contain all of the claims and factual allegations the Plaintiff wishes the Court to consider. The Clerk of the Court is to terminate the pending motion, (Dkt. No. 38), and mail a copy of this Opinion and Order to Plaintiff. SO ORDERED. (Signed by Judge Kenneth M. Karas on 3/7/2018) (mml)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CHARLES T. MCINTOSH,
-vNo. 15-CV-2442 (KMK)
UNITED STATES OF AMERICA; MR.
HUFFORD, Warden; MR. ZUK, Chaplain; MR.
DECKER, FSD; MR. GREEN, FSD; MS.
BIANCHI, FS STAFF; 1 to 50 JOHN AND JANE
OPINION & ORDER
Charles T. McIntosh
Pro Se Plaintiff
Natasha Waglow Teleanu, Esq.
United States Attorney’s Office, Southern District of New York
New York, NY
Counsel for Defendants
KENNETH M. KARAS, District Judge:
Pro se Plaintiff Charles T. McIntoch (“Plaintiff”) filed the instant Complaint against the
United States of America (the “Government”), Warden Howard Hufford (“Hufford”), Chaplain
Richard Zuk (“Zuk”), Food Services Administrator Wayne Decker (“Decker”), Food Services
Administrator Jeffry Green (“Green”), Food Services Staff Gina Bianchi (“Bianchi”)
(collectively “Defendants”) alleging violations of his constitutional and statutory rights.
Specifically, Plaintiff brings claims under Bivens v. Six Unknown Named Agents of Federal
Bureau of Narcotics, 403 U.S. 388 (1971), alleging Defendants violated his First, Fifth, Eighth,
and Fourteenth Amendment rights; the Federal Tort Claims Act (the “FTCA”), 28 U.S.C.
§ 2674, et seq.; Sections 1985 and 1986 of the Civil Rights Act, 42 U.S.C. §§ 1985 & 1986; the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. §§ 2000cc-1, et
seq.; and the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb, et seq. (See
Compl. 2 (Dkt. No. 1).)1 Before the Court is the Government’s Motion To Dismiss the Amended
Complaint (the “Motion”) on a variety of grounds, pursuant to Federal Rules of Civil Procedure
12(b)(1), 12(b)(5), and 12(b)(6). (See Mot. To Dismiss (“Mot.”) (Dkt. No. 38).) For the
following reasons, the Government’s Motion is granted.
A. Factual Background
The following facts are drawn from the Complaint and are taken as true for the purpose
of resolving the instant Motion. At the time of the events described herein, Plaintiff was an
inmate at FCI – Otisville in Otisville, New York.2
Plaintiff is a member of the Rastafarian faith. (See Compl. ¶ 1.) Plaintiff alleges that
Defendants violated his constitutional and statutory rights related to practice of his Rastafarian
The Complaint lists “1 to 50 John & Jane Does” as Defendants in this Action. As the
Court noted in an Order of Service, Plaintiff “does not provide any identifying information about
the fifty John and Jane Doe Defendants that he seeks to sue or explain how they were personally
involved in what occurred.” (See Dkt. No. 8.) Plaintiff has never moved to amend the
Complaint, identified these Defendants, or otherwise served them. Therefore, the fifty John Doe
and Jane Doe Defendants are dismissed from this Action, and the Clerk of Court is directed to
amend the caption accordingly.
Plaintiff was incarcerated at FCI – Terre Haute in Terre Haute, Indiana when the
Complaint was filed. (See Dkt. No. 8.) Plaintiff was released from federal custody on June 2,
2017. (See Def.’s Decl. in Supp. of Mot. To Dismiss (“Def.’s Decl.”) ¶ 12 (Dkt. No. 40).)
faith by preventing him and other Rastafarian inmates from properly observing the “Rastafarian
Ceremonial Meal.” (See id. ¶¶ 1, 7–10.) The Rastafarian ceremonial meal is “a ‘once’ per year
event” that was scheduled on July 23, 2013. (See id. ¶ 11.)3
On May 14, 2013, Plaintiff filed a grievance against Defendant Zuk regarding the
upcoming ceremonial meal and FCI – Otisville’s failure to allow the Rastafarians to freely
exercise their religious beliefs, including the requirement that observers fast from sun-up to sundown prior to the meal and the timing for the feast. (See id. ¶ 1.)4 According to Plaintiff, the
“Chaplain[’s] department is required to manage the affairs of all religious faiths.” (See id. ¶ 13.)
The chaplain, Defendant Zuk, denied Plaintiff’s request for certain ritual objects in preparation
for the meal, including Rastafarian music, videos, and oils because they were “not religious
Rastafarian items.” (See id.; see also id. ¶¶ 53–54.) Plaintiff alleges the denial of the request
was “retaliation . . . based solely on both ‘Stuart’ and [Plaintiff’s] refusal to withdraw the
administrative grievances.” (See id. ¶ 55.)5 “Most of the Rastafarian community” chose to
“boycott this most sacread [sic] Holly [sic] event that only comes once a year, because it was
Occasional words and phrases in Plaintiff’s Complaint are written in all capital letters.
Here and elsewhere, when quoting such words phrases, this Opinion reverts to conventional
capitalization for ease of readability.
The Complaint contains many allegations regarding Plaintiff’s exhaustion of
administrative remedies through the prison grievance system. (See, e.g., ¶¶ 31– 48.) Because
failure to exhaust under the PLRA is not a ground for dismissal raised by the Government in the
Motion, the Court does not recite those facts.
McIntosh refers to conduct against “Plaintiff Stuart,” another Rastafarian inmate at FCI
– Otisville, frequently in the Complaint. (See Compl. at 3, ¶¶ 6, 21, 43, 45, 46–48, 53, 55, 56,
63). “Because Plaintiff Stuart has not signed the Complaint or otherwise manifested any intent
to participate in this action,” the Court “dismisse[d] him without prejudice from the action” in
the Order of Service. (See Dkt. No. 8.) Plaintiff and Stuart did not file an amended complaint
signed by both parties, so the Court does not consider claims raised by Plaintiff in regard to
Defendants’ alleged conduct against Stuart.
made clear by the F.C.I. Otisville administration that they inten[d]ed to violate and disrespect the
Rastafarian Faith and Practices by forcing us to alter our faith [and] practices.” (See id. ¶ 24.)
Plaintiff raises numerous complaints regarding events that occurred at the meal on July
23, 2013. First, Plaintiff alleges he was “denied the right to fast from sun-up to sun-down”
before the ceremonial meal. (Id. ¶ 8; see also id. ¶ 10.) It appears the meal took place at 12:30
p.m., rather than after sundown. (See id. ¶ 20 (describing events occurring at 12:30 p.m.).)
Plaintiff alleges that Defendants violated RLUIPA because “all other religious faiths, [such] as
Jew’s and Mus[l]im’s” are afforded a fasting period before ceremonial meals. (Id. ¶ 25.)
Second, Plaintiff says he “was denied the right to prayer, to give thanks for our blessings,
families, childrern [sic] etc., in the proper Rastafarian practices, and beliefs.” (Id. ¶ 9.)
Specifically, Plaintiff asserts he “was denied the right to bless our ceremonial meal in the proper
Rastafarian Religious practices.” (Id. ¶ 10.) Third, Plaintiff alleges Defendants permitted
“unclean and untouchable” non-Rastafarians to prepare, serve, and participate in the meal in
violation of ritual purity laws. (Id. ¶¶ 14, 58.) The Rastafarian faith provides that “anyone who
touches or eats the carcass of an unclean animal becomes unclean.” (Id. ¶ 14.) Rastafarians
consider “pigs/pork” to be “unclean and untouchable.” (Id.) Anyone outside the Rastafarian
faith that eats and touches “pig/pork” are “forbid[d]en to prepa[re], touch, cook [and] serve [the]
religious ceremonial meal,” or “participate in any Rastafarian Religious Ceremonial meals, and
practices.” (Id.) The Food Services Administration would only allow inmates assigned to Food
Service to work in the kitchen to prepare the ceremonial meal. (See id. ¶ 4.) As a result, “nonfaith members [of] staff made[,] serve[d,] and cooked, [and] prepared” the Rastafarian
Ceremonial Meal. (Id. ¶ 21.) In particular, according to Plaintiff, Defendants Hufford, Decker,
Green, Bianchi, and Zuk “did knowingly and willingly violate the Rastafarian religious
ceremonial-meal and religious practices as well as the requirements in having ‘unclean-non-faith
members’ of the Rastafarian laws and religious bele[i]f’s and practices.” (Id. ¶ 20.) Fourth,
Plaintiff alleges that Defendant Bianchi denied the celebrants “a second serving of our
Ceremonial meal” and “ordered the non-faith members [of] staff . . . to take the remaining
ceremonial meal off the serving line.” (Id. ¶ 21.) Thus, “[n]o Rastafarian was able to enjoy or
rece[i]ved the privil[e]ge of finishing their ceremonial meal, as we was [sic] made to rush so that
the kitchen staff could prepare for the evening meal.” (Id. ¶ 22.) According to Plaintiff, the
remaining ceremonial meal was served later in the evening as “the Muslims Ramad[a]n meal.”
(Id. ¶ 23.)
Plaintiff also alleges that the Bureau of Prisons’ (“BOP”) policy regarding Rastafarianism
is flawed in various respects. (See id. ¶¶ 26–28.) For example, the “BOP policy does not state
the type of oils used for worship in prayer’s,” (id. ¶ 26), “[n]ordoes it have the religious items
needed for the faith and practices,” (id. ¶ 27), and it “does not state the number of days that
Rastafarians have to fast before the religious ceremonial meal celebrations,” (id. ¶ 28).
Finally, Plaintiff alleges that the Defendants are in violation of “the Federal Bureau of
Prisons Program Statement OPI:OGC. No. 3420.09 Subject: Standard of Employ[e]e Conduct,”
specifically, “codes #’s 9-Disrespectful conduct; #28-Preferential treatment of inmates; #35criminal, dishonest, infamous, and notoriously disgraceful conduct; #36-Conduct which could
lead others to question their impartiality; #37-Discrimination in official action against an
applicant because of ‘race,’ ‘religion,’ sex, ‘national origin,’ age, handicapping condition, sexual
orientation, etc.” (Id. ¶ 30.)
As a result of these alleged violations, Plaintiff seeks compensatory damages in the
amount of $ 200,000,000.00. (See id. ¶¶ 84–85.)
B. Procedural History
Plaintiff filed the instant Complaint on March 31, 2015. (See Compl. 1.) On November
16, 2016, the Government sought an extension of time to respond to the Complaint, noting that it
had been served, but Defendants Hufford, Bianchi, Decker, Zuk, and Greene (“Individual
Defendants”) had not been properly served. (See Dkt. No. 16.) The Court granted the extension.
(See Dkt. No. 18.) On December 9, 2016, the Government requested a premotion conference to
file the present Motion. (See Dkt. No. 24.) The Government also informed the Court that
Plaintiff had still not properly served the Individual Defendants. (See id.) On December 21,
2016, the Court ordered Plaintiff to “properly serve all defendants by 1/20/2017.” (See Dkt. No.
On January 3, 2017, Plaintiff filed a Motion to Stay All Proceedings, (see Dkt. No. 27),
because he “packed ‘all legal’ documents/cases and mailed home while [waiting] release from
federal prison to the halfway house in Wisconsin.” (See id.)
Pursuant to a Scheduling Order issued by the Court on September 6, 2017, (see Dkt. No.
37), the Government filed the Motion and accompanying papers on October 10, 2017, (see Dkt.
Nos. 38–40). On October 30, 2017, the Government informed the Court that Plaintiff had failed
to update his address with the Court and the Motion and accompanying papers could not be
served on Plaintiff. (See Dkt. No. 43.) The Government also informed the Court that Plaintiff
had failed to properly serve the Individual Defendants. (See id.) On November 1, 2017,
pursuant to a memo endorsement, the Court instructed Plaintiff to respond to the letter and that if
he did not, the Motion would be decided on the papers submitted. (See Dkt. No. 44.) Plaintiff
did not respond.
A. Standard of Review
“The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject
matter jurisdiction and under 12(b)(6) for failure to state a claim are ‘substantively identical.’”
Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn.
June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)); see also
Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same),
aff’d, 591 F. App’x 28 (2d Cir. 2015). “In deciding both types of motions, the Court must accept
all factual allegations in the complaint as true, and draw inferences from those allegations in the
light most favorable to the plaintiff.” Gonzalez, 2014 WL 2475893, at *2 (internal quotation
marks omitted); see also Seemann v. U.S. Postal Serv., No. 11-CV-206, 2012 WL 1999847, at *1
(D. Vt. June 4, 2012) (same). However, “[o]n a Rule 12(b)(1) motion, . . . the party who invokes
the Court’s jurisdiction bears the burden of proof to demonstrate that subject matter jurisdiction
exists, whereas the movant bears the burden of proof on a motion to dismiss under Rule
12(b)(6).” Gonzalez, 2014 WL 2475893, at *2; see also Sobel v. Prudenti, 25 F. Supp. 3d 340,
352 (E.D.N.Y. 2014) (“In contrast to the standard for a motion to dismiss for failure to state a
claim under Rule 12(b)(6), a plaintiff asserting subject matter jurisdiction has the burden of
proving by a preponderance of the evidence that it exists.” (internal quotation marks omitted)).
This difference as to the allocation of the burden of proof is “[t]he only substantive difference”
between the standards of review under these two rules. Smith v. St. Luke’s Roosevelt Hosp., No.
08-CV-4710, 2009 WL 2447754, at *9 n.10 (S.D.N.Y. Aug. 11, 2009), adopted by 2009 WL
2878093 (S.D.N.Y. Sept. 2, 2009); see also Fagan v. U.S. Dist. Court for S. Dist. of N.Y., 644 F.
Supp. 2d 441, 446–47 & n.7 (S.D.N.Y. 2009) (same).
1. Rule 12(b)(1)
“A federal court has subject matter jurisdiction over a cause of action only when it has
authority to adjudicate the cause pressed in the complaint.” Bryant v. Steele, 25 F. Supp. 3d 233,
241 (E.D.N.Y. 2014) (quoting Arar v. Ashcroft, 532 F.3d 157, 168 (2d Cir. 2008), vacated and
superseded on reh’g on other grounds, 585 F.3d 559 (2d Cir. 2009) (en banc)). “Determining
the existence of subject matter jurisdiction is a threshold inquiry[,] and a claim is properly
dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks
the statutory or constitutional power to adjudicate it.” Morrison v. Nat’l Austl. Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008) (internal quotation marks omitted), aff’d, 561 U.S. 247 (2010);
United States v. Bond, 762 F.3d 255, 263 (2d Cir. 2014) (describing subject matter jurisdiction as
the “threshold question” (internal quotation marks omitted)).
While a district court resolving a motion to dismiss under Rule 12(b)(1) “must take all
uncontroverted facts in the complaint . . . as true, and draw all reasonable inferences in favor of
the party asserting jurisdiction,” “where jurisdictional facts are placed in dispute, the court has
the power and obligation to decide issues of fact by reference to evidence outside the pleadings,
such as affidavits,” in which case “the party asserting subject matter jurisdiction has the burden
of proving by a preponderance of the evidence that it exists.” Tandon v. Captain’s Cove Marina
of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir. 2014) (alteration, internal quotation marks, and
citation omitted); see also Ray Legal Consulting Grp. v. Gray, 37 F. Supp. 3d 689, 696
(S.D.N.Y. 2014) (“[W]here subject matter jurisdiction is contested a district court is permitted to
consider evidence outside the pleadings, such as affidavits and exhibits.”).
2. Rule 12(b)(6)
The Supreme Court has held that although a complaint “does not need detailed factual
allegations” to survive a motion to dismiss, “a plaintiff’s obligation to provide the grounds of his
[or her] entitlement to relief requires more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action will not do.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555
(2007) (alteration and internal quotation marks omitted). Indeed, Rule 8 of the Federal Rules of
Civil Procedure “demands more than an unadorned, the-defendant-unlawfully-harmed-me
accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Nor does a complaint suffice if it
tenders naked assertions devoid of further factual enhancement.” Id. (alteration and internal
quotation marks omitted). Rather, a complaint’s “[f]actual allegations must be enough to raise a
right to relief above the speculative level.” Twombly, 550 U.S. at 555. Although “once a claim
has been stated adequately, it may be supported by showing any set of facts consistent with the
allegations in the complaint,” id. at 563, and a plaintiff must allege “only enough facts to state a
claim to relief that is plausible on its face,” id. at 570, if a plaintiff has not “nudged [her] claims
across the line from conceivable to plausible, the complaint must be dismissed,” id.; see also
Iqbal, 556 U.S. at 679 (“Determining whether a complaint states a plausible claim for relief
will . . . be a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. But where the well-pleaded facts do not permit the court to infer
more than the mere possibility of misconduct, the complaint has alleged—but it has not
‘show[n]’—‘that the pleader is entitled to relief.’” (second alteration in original) (citation
omitted) (quoting Fed. R. Civ. P. 8(a)(2))); id. at 678–79 (“Rule 8 marks a notable and generous
departure from the hypertechnical, code-pleading regime of a prior era, but it does not unlock the
doors of discovery for a plaintiff armed with nothing more than conclusions.”).
“[W]hen ruling on a defendant’s motion to dismiss, a judge must accept as true all of the
factual allegations contained in the complaint,” Erickson v. Pardus, 551 U.S. 89, 94 (2007), and
“draw all reasonable inferences in favor of the plaintiff,” Daniel v. T & M Prot. Res., Inc., 992
F. Supp. 2d 302, 304 n.1 (S.D.N.Y. 2014) (citing Koch v. Christie’s Int’l PLC, 699 F.3d 141, 145
(2d Cir. 2012)). Additionally, “[i]n adjudicating a Rule 12(b)(6) motion, a district court must
confine its consideration to facts stated on the face of the complaint, in documents appended to
the complaint or incorporated in the complaint by reference, and to matters of which judicial
notice may be taken.” Leonard F. v. Isr. Disc. Bank of N.Y., 199 F.3d 99, 107 (2d Cir. 1999)
(internal quotation marks omitted); see also Wang v. Palmisano, 157 F. Supp. 3d 306, 317
(S.D.N.Y. 2016) (same).
Where, as here, a plaintiff proceeds pro se, the Court must “construe [his] [complaint]
liberally and interpret [it] to raise the strongest arguments that [it] suggest[s].” Sykes v. Bank of
Am., 723 F.3d 399, 403 (2d Cir. 2013) (internal quotation marks omitted). However, “the liberal
treatment afforded to pro se litigants does not exempt a pro se party from compliance with
relevant rules of procedure and substantive law.” Bell v. Jendell, 980 F. Supp. 2d 555, 559
(S.D.N.Y. 2013) (internal quotation marks omitted); see also Caidor v. Onondaga County, 517
F.3d 601, 605 (2d Cir. 2008) (“[P]ro se litigants generally are required to inform themselves
regarding procedural rules and to comply with them.” (italics and internal quotation marks
The Government raises five arguments: (1) Plaintiff’s constitutional claims against the
United States are barred by sovereign immunity; (2) the Court lacks subject matter jurisdiction to
entertain an FTCA claim because Plaintiff failed to exhaust his administrative remedies and
never filed an administrative tort claim within the statutory two-year period; (3) Plaintiff’s
RLUIPA claim fails to state a claim because RLUIPA does not provide for a cause of action
against the Government; (4) Plaintiff’s RFRA claim fails because he seeks only monetary
damages, and RFRA does not provide for monetary damages; and (5) the Court lacks jurisdiction
over Plaintiff’s Section 1985 and Section 1986 claims because the United States has not waived
its sovereign immunity for claims brought pursuant to the Civil Rights Act. (Def.’s Mem. of
Law in Supp. of Mot. To Dismiss (“Def.’s Mem.”) 12 (Dkt. No. 39).) The Court will address
each in turn.
1. Constitutional and FTCA Claims
Plaintiff brings claims under the First, Fifth, Eighth, and Fourteenth Amendments and the
“Tort Claims Act,” naming the United States of America as a Defendant, (see Compl. 1), and,
further, specifies that he brings suit against “the above Defendant(s) . . . acting in their own
individual capacity but under color of federal authority, and under their official capacity under
color of federal authority,” (id. at 2). The Government, however, argues that (1) it has not
waived sovereign immunity for constitutional torts; (2) Plaintiff’s claims against the Individual
Defendants in their official capacities are also considered suits against the Government barred by
sovereign immunity; and (3) to the extent that Plaintiff tries to allege a tort claim, it fails for
failure to exhaust his administrative remedies under the Federal Tort Claims Act (“FTCA”).
(See Def.’s Mem. 12.)
“Absent a waiver, sovereign immunity shields the Federal Government and its agencies
from suit.” Dep’t of the Army v. Blue Fox, Inc., 525 U.S. 255, 260 (1999) (internal quotation
marks omitted); see also Diaz v. United States, 517 F.3d 608, 611 (2d Cir. 2008) (same). “The
waiver of sovereign immunity is a prerequisite to subject matter jurisdiction.” Presidential
Gardens Assocs. v. U.S. ex rel. Sec. of Hous. & Urban Dev., 175 F.3d 132, 139 (2d Cir. 1999).
Thus, “[t]o establish that subject matter jurisdiction exists for a suit, Plaintiff must identify an
applicable waiver of the Government’s sovereign immunity; otherwise, the Court must dismiss
the suit, pursuant to Rule 12(b)(1).” De Masi v. Schumer, 608 F. Supp. 2d 516, 524 (S.D.N.Y.
2009) (citing Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000)). “[W]aivers of
sovereign immunity must be ‘unequivocally expressed’ in statutory text, and cannot simply be
implied.” Adeleke v. United States, 355 F.3d 144, 150 (2d Cir. 2004) (quoting United States v.
Nordic Vill., Inc., 503 U.S. 30, 33 (1992)). Moreover, a plaintiff bears the burden to demonstrate
that sovereign immunity has been waived. See Makarova, 201 F.3d at 113 (“[T]he plaintiff bears
the burden of establishing that [his or] her claims fall within an applicable waiver.”).
The FTCA is a “limited waiver by the United States of its sovereign immunity and allows
for a tort suit against the United States under specified circumstances.” Liranzo v. United States,
690 F.3d 78, 85 (2d Cir. 2012) (quoting Hamm v. United States, 483 F.3d 135, 137 (2d Cir.
2007)); see also Regnante v. Sec. & Exch. Officials, No. 14-CV-4880, 2015 WL 5692174, at *13
(S.D.N.Y. Sept. 28, 2015) (same). The FTCA waives sovereign immunity only for:
claims against the United States, for money damages . . . for injury or loss of
property, or personal injury or death caused by the negligent or wrongful act or
omission of any employee of the Government while acting within the scope of his
office or employment, under circumstances where the United States, if a private
person, would be liable to the claimant in accordance with the law of the place
where the act or omission occurred.
28 U.S.C. § 1346(b)(1). The FTCA does not waive the United States’ sovereign immunity for
constitutional torts. See F.D.I.C. v. Meyer, 510 U.S. 471, 477 (1994) (“By definition, federal
law, not state law, provides the source of liability for a claim alleging the deprivation of a federal
constitutional right . . . . [And] the United States simply has not rendered itself liable under [the
FTCA] for constitutional tort claims.”). Additionally, “[t]he United States has not waived its
sovereign immunity with respect to claims that its employees have committed constitutional
torts.” Alston v. Sebelius, No. 13-CV-4537, 2014 WL 4374644, at *8 (E.D.N.Y. Sept. 2, 2014)
(quoting Castro v. United States, 34 F.3d 106, 110 (2d Cir. 1994)). Accordingly, “Bivens claims
do not lie against federal employees in their official capacities, because such suits are considered
actions against the United States, and are barred by the doctrine of sovereign immunity.” Wright
v. Condit, No. 13-CV-2849, 2015 WL 708607, at *1 (S.D.N.Y. Feb. 18, 2015) (citing Robinson
v. Overseas Military Sales Corp., 21 F.3d 502, 510 (2d Cir. 1994)); see also Gonzalez v.
Shahnoon, No. 15-CV-2961, 2015 WL 6118528, at *4 (E.D.N.Y. Oct. 16, 2015) (“Bivens claims
against federal officials in their official capacity are barred by the sovereign immunity
doctrine.”). Therefore, to the extent that Plaintiff (1) brings a tort claim against the Government
directly for violations of the First, Fifth, Eighth, and Fourteenth Amendments or (2) a Bivens
claim against the Individual Defendants in their official capacities for violations of the First,
Fifth, Eighth, and Fourteenth Amendments, his claims are barred by the doctrine of sovereign
immunity and must therefore be dismissed.
Plaintiff does not explain in any detail what his “tort claim” against the Defendants is.
Even if the Court were to attempt liberally construe one, because Plaintiff has not exhausted any
such claim, it fails. An FTCA action “against the United States is the exclusive remedy for a suit
for damages for injury resulting from the negligent or wrongful act or omissions of any
employee of the Government while acting within the scope of his office or employment.”
Bearam v. Sommer, No. 12-CV-1858, 2013 WL 5405492, at *8 (S.D.N.Y. Sept. 25, 2013)
(internal quotation marks omitted) (citing, inter alia, 28 U.S.C. § 2679(b)(1)); see also Finley v.
Hersh, No. 12-CV-162, 2013 WL 3450270, at *7 (D. Vt. July 9, 2013) (“As to [the plaintiff’s]
tort claims, his exclusive remedy for monetary damages against the United States is under the
Federal Tort Claims Act.”). When bringing an FTCA claim, plaintiffs are required to first
exhaust their administrative remedies. See Celestine v. Mount Vernon Neighborhood Health
Ctr., 403 F.3d 76, 82 (2d Cir. 2005) (“The FTCA requires that a claimant exhaust all
administrative remedies before filing a complaint in federal district court.”); Morrow v. Dupont,
No. 08-CV-3083, 2010 WL 1005856, at *3 (E.D.N.Y. Mar. 15, 2010) (same); see also 28 U.S.C.
§ 2675(a) (“An action shall not be instituted upon a claim against the United States for money
damages for . . . personal injury . . . caused by the negligent or wrongful act or omission of any
employee of the Government while acting within the scope of his office or employment, unless
the claimant shall have first presented the claim to the appropriate Federal agency and his claim
shall have been finally denied by the agency in writing and sent by certified or registered mail.”).
The FTCA’s exhaustion requirement is “jurisdictional and cannot be waived.” Celestine, 403
F.3d at 82; see also Bastien v. Samuels, No. 14-CV-1561, 2015 WL 5008837, at *2 (E.D.N.Y.
Aug. 21, 2015) (same); R.C.L. Infant v. Bronx-Lebanon Hosp. Ctr., No. 13-CV-6764, 2015 WL
1499745, at *4 (S.D.N.Y. Mar. 31, 2015) (same).6 “The plaintiff bears the burden of pleading
The Supreme Court has recently held that the FTCA’s time limits for filing an
administrative claim and bringing suit in federal court are not jurisdictional. See United States v.
Kwai Fun Wong, 135 S. Ct. 1625, 1638 (2015) (“[W]e hold that the FTCA’s time bars are
nonjurisdictional and subject to equitable tolling.”). However, “the Court’s opinion did not
address—and therefore did not disturb—the well-established principle that . . . exhaustion of
administrative remedies [is] jurisdictional in nature, and [is] not subject to waiver . . . .”
Mohamed v. F.B.I., No. 14-CV-7615, 2015 WL 6437369, at *6 (S.D.N.Y. Oct. 21, 2015); see
also Barnhill v. Terrell, 616 F. App’x 23, 25 & n.1 (2d Cir. 2015) (concluding that “[the
plaintiff] failed to exhaust his administrative remedies, and that [the district court] accordingly
lacked jurisdiction to hear his FTCA claims,” but noting that in Kwai Fun Wong, “the U.S.
Supreme Court ruled that time limitations under the FTCA are nonjurisdictional and subject to
equitable tolling”); cf. Ortega v. Colvin, No. 13-CV-3487, 2015 WL 6143591, at *4 (E.D.N.Y.
Oct. 19, 2015) (noting the holding in Kwai Fun Wong, but also indicating that “[t]he
administrative exhaustion requirement [of the FTCA] derives from a cardinal principle of law—
that the United States, as sovereign, is immune from suits in the courts of law,” and that
“[s]overeign immunity creates a jurisdictional bar to suit” (internal quotation marks omitted)).
compliance with the FTCA’s exhaustion requirement.” Sherman-Amin-Braddox:Bey v. McNeil,
No. 10-CV-5340, 2011 WL 795855, at *2 (E.D.N.Y. Feb. 25, 2011) (citing In re Agent Orange
Prod. Liab. Litig., 818 F.2d 210, 214 (2d Cir. 1987)); accord Foster v. Fed. Emergency Mgmt.
Agency, No. 14-CV-1750, 2015 WL 5430370, at *10 (E.D.N.Y. Sept. 15, 2015) (same); Bastien,
2015 WL 5008837, at *5 (same); see also Aurecchione v. Schoolman Transp. Sys., Inc., 426 F.3d
635, 638 (2d Cir. 2005) (“The plaintiff bears the burden of proving subject matter jurisdiction by
a preponderance of the evidence.”). “With respect to claims against the BOP, the FTCA requires
that an inmate mail or deliver his or her claim to the BOP’s Regional Office, and then to appeal
an adverse decision in writing to the BOP prior to filing suit in U.S. District Court.” Lockwood
v. Fed. Bureau of Prisons, No. 13-CV-8104, 2015 WL 4461597, at *2 (S.D.N.Y. July 21, 2015)
(citing 28 C.F.R. §§ 543.31(c), 543.32(g)).
Here, Plaintiff has not attempted to plead or argue that he complied with the FTCA’s
exhaustion requirement.7 The Court simply does not have jurisdiction to entertain Plaintiff’s
FTCA claim, to the extent one even is to be found in the Amended Complaint. See ShermanAmin-Braddox:Bey, 2011 WL 795855, at *2 (noting that “[t]he plaintiff bears the burden of
pleading compliance with the FTCA’s exhaustion requirement”). However, Plaintiff’s FTCA
Nor would it be an answer (to the extent that it is even true) that Plaintiff exhausted his
remedies under the Prison Litigation Reform Act (“PLRA”), which Plaintiff attempts to plead.
(See Compl. ¶¶ 31–48.) “The exhaustion procedures under the two statutes differ, and the
fulfillment of one does not constitute satisfaction of the other.” Owusu v. Fed. Bureau of
Prisons, No. 02-CV-915, 2003 WL 68031, at *2 (S.D.N.Y. Jan. 7, 2003) (footnote omitted); see
also Ward v. Ives, No. 11-CV-1657, 2014 WL 4417764, at *6 (E.D. Cal. Sept. 4, 2014) (“Prison
grievances are not sufficient to exhaust administrative remedies under the FTCA because
exhaustion requirements for administrative remedies through the BOP’s inmate grievance system
differ from the exhaustion requirements for filing a claim under the FTCA.” (alterations and
internal quotation marks omitted)), adopted by 2014 WL 4929454 (E.D. Cal. Sept. 30, 2014);
Robinson v. United States, No. 13-CV-1106, 2014 WL 2940454, at *6 (M.D. Pa. June 30, 2014)
(“[A]n inmate may not rely upon the submission of prison grievances to satisfy his separate and
independent exhaustion requirement under the FTCA.”)
claims are dismissed without prejudice, and Plaintiff is granted leave to file an Amended
Complaint within 20 days of this Opinion.8 Consequently, if Plaintiff has exhausted his
administrative remedies pursuant to the FTCA by that time, he may assert his FTCA claim in his
Amended Complaint. See Vitrano v. United States, No. 06-CV-6518, 2008 WL 1752221, at *4
(S.D.N.Y. Apr. 16, 2008) (“When and if [the plaintiff] is able to plead satisfaction of
jurisdictional prerequisites [of his FTCA claim], he will be entitled to assert these claims either
by amending his complaint here or by filing a new action.”). To the extent that Plaintiff has
exhausted such remedies but his FTCA claim is nonetheless untimely, see 28 U.S.C. § 2401(b),
he is free to allege facts sufficient to argue that that untimeliness should be forgiven under the
doctrine of equitable tolling, see Palmer-Williams v. United States, No. 14-CV-9260, 2016 WL
676465, at *3 (S.D.N.Y. Feb. 18, 2016) (noting that “the U.S. Supreme Court recently ruled that
time limitations under the FTCA are nonjurisdictional and therefore subject to equitable tolling”
(citing United States v. Kwai Fun Wong, 135 S. Ct. 1625, 1633 (2015))).
2. RLUIPA Claims
Plaintiff alleges his right to exercise his religion pursuant to RLUIPA has been violated.
(See Compl. ¶ 29.) The Government moves to dismiss this claim on the grounds that RLUPIA
does not create a cause of action against the United States. (See Def.’s Mem. 15–16.)
The Government submits a declaration that a review of the database of administrative
tort claims filed with BOP indicates that Plaintiff did not file a timely administrative tort claim
related to the claims raised in the instant Complaint. (See Def.’s Mem. Law 14; Def.’s Decl.
¶ 9–10 & Ex. E.) While the Court can refer “to evidence outside the pleadings, such as
affidavits,” Tandon, 752 F.3d at 243, and exhibits, Ray Legal, 37 F. Supp. 3d at 696, in deciding
whether it has subject matter jurisdiction, the Court will nonetheless grant Plaintiff the
opportunity to amend the Complaint, since better pleading could potentially cure this defect. Cf.
Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir. 2000).
“Congress enacted RLUIPA as an amendment to RFRA in light of the Supreme Court’s
decision in City of Boerne, 521 U.S. 507, which held that RFRA was unconstitutional as applied
to the states.” Sabir v. Williams, No. 17-CV-749, 2017 WL 6514694, at *6 (D. Conn. Dec. 19,
2017) (citing Holt v. Hobbs, 135 S. Ct. 853, 860 (2015).) RLUIPA provides that:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution, as defined in [§] 1997 of [Title
42], even if the burden results from a rule of general applicability, 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.
42 U.S.C. § 2000cc-1(a). RLUPIA’s definition of “government” includes any “State, county,
municipality, or other governmental entity created under the authority of a State,” “any branch,
department, agency, instrumentality, or official” thereof, and “any other person acting under
color of State law.” Id. § 2000cc-5(4)(A). Section 1997 defines an institution as a facility or
institution that, among other things, “is owned, operated, or managed by, or provides services on
behalf of any State or political subdivision of a State.” Id. § 1997(1)(A). A “State” means “any
of the several States, the District of Columbia, the Commonwealth of Puerto Rico, or any of the
territories and possessions of the United States.” Id. § 1997(4). Accordingly, RLUIPA “only
applies to state and local governments, not a federal prison.” Pineda-Morales v. DeRosa, 03CV-4297, 2005 WL 1607276, at *4 (D. N.J. Jul. 6, 2005); see also Ish Yerushalayim v. United
States, 374 F.3d 89, 92 (2d Cir. 2004) (“Because RLUIPA clearly does not create a cause of
action against the federal government or its correctional facilities, [the plaintiff] has no RLUIPA
cause of action.”). Plaintiff therefore has no cause of action against the United States under
Plaintiff also alleges his right to exercise his religion pursuant to the RFRA has been
violated. (See Compl. ¶¶ 29, 82.) The Government moves to dismiss this claim on the ground
that RFRA does not provide for monetary damages, (See Def.’s Mem. 16–17), which is the only
relief Plaintiff seeks in this case, (See Compl. ¶¶ 82–85).
Similar to RULIPA, RFRA provides that “Government shall not substantially burden a
person’s exercise of religion even if the burden results from a rule of general applicability,”
unless “it demonstrates that application of the burden to the person—(1) is in furtherance of a
compelling governmental interest; and (2) is the least restrictive means of furthering that
compelling governmental interest.” 42 U.S.C. § 2000bb-1(a–b). “[T]he Supreme Court has
acknowledged the availability of injunctive relief under RFRA.” Tanvir v. Lynch, 128 F. Supp.
3d 756, 775 (S.D.N.Y. 2015) (citing Gonzales v. O Centro Espirita Beneficente Uniao do
Vegetal, 546 U.S. 418, 425–30 (2006)), appeal docketed, No. 16-1176 (2d Cir. Apr. 18, 2016).
However, “neither the Supreme Court nor any of the thirteen courts of appeals has held that
RFRA provides for money damages.” Id. Indeed, several circuit courts, as well as other district
courts in the Second Circuit, have held that RFRA did not waive sovereign immunity for money
damages against the United States or its agents acting in their official capacity. See, e.g., Davila
v. Gladden, 777 F.3d 1198, 1210 (11th Cir. 2015) (holding RFRA does not provide for suits for
money damages against the United States or its agents acting in their official capacity);
Oklevueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829, 841 (9th Cir. 2012) (same);
Webman v. Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006) (same); Tanvir, 128 F.
Supp. 3d at 780 (holding RFRA does not provide for money damages against federal officials in
their official or personal capacity); see also Sossamon v. Texas, 563 U.S. 277, 288 (2011)
(holding RLUIPA does not provide for suits for money damages against a state). Keeping with
these decisions, the Court holds that Plaintiff’s RFRA claim fails because RFRA did not waive
sovereign immunity for money damages against the United States or its agents acting in their
Even if Plaintiff’s claim could be construed as seeking injunctive relief, any claim for
such relief is moot. 9 Plaintiff was transferred from FCI – Otisville to FCI – Terre Haute
sometime between the actions alleged in the Complaint and the filing of the Complaint. (Dkt.
No. 6 (listing FCI – Terre Haute as Plaintiff’s place of incarceration at the time the Complaint
was filed).) Additionally, Plaintiff was released from BOP custody on June 2, 2017. (See Def.’s
Decl. ¶ 12.) “It is settled in this Circuit that a transfer from a prison facility moots an action for
injunctive relief against the transferring facility.” Prins v. Coughlin, 76 F.3d 504, 506 (2d Cir.
1996); see also Salahuddin v. Goord, 467 F.3d 263, 272 (2d Cir. 2006) (“[A]n inmate’s transfer
from a prison facility generally moots claims for declaratory and injunctive relief against
officials of that facility.”); McAlpine v. Thompson, 187 F.3d 1213, 1218 (10th Cir. 1999) (noting
that eight other “circuit[s that have] consider[ed] the issue ha[ve] decided that release to parole
moots a claim regarding prison conditions and regulations” and so holding) (italics omitted).
Accordingly, any claim for injunctive relief is moot.
Plaintiff mentions “injunctive relief” once in the complaint, as part of a citation to a
somewhat unclear statement relating to the statute of limitations in the context of his conspiracy
claims, noting “[t]here is an exception to a general rule for cases where Plaintiff(s) seek
injunctive relief . . . A violation is called ‘continuing’ signifying that a plaintiff can reach back to
its begin[n]ing even if that begin[n]ing lies outside the statutory limitations period, when it
would be unreasonable to require or even permit him to sue sep[a]ratl[e]y over every incident
of the defend[a]nts unlawful conduct.” (Compl. ¶ 80.)
4. Section 1985 and Section 1986 Claims
Plaintiff also asserts claims for conspiracy to interfere with civil rights and neglect to
prevent conspiracy, pursuant to 42 U.S.C. §§ 1985 and 1986. (See Compl. ¶¶ 79–80, 83.) The
Government moves to dismiss these claims on the grounds that the Court lacks jurisdiction over
these claims, because the United States has not waived sovereign immunity for claims brought
pursuant to 42 U.S.C. §§ 1985 and 1986. (See Def.’s Mem. at 18.) The Court agrees that it lacks
jurisdiction to hear §§ 1985 and 1986 claims against the United States and the Defendants sued
in their official capacity, as §§ 1985 and 1986 are “inapplicable to the federal government.”
Murray v. Lakeland Cent. Sch. Dist. Bd. of Educ., No. 16-CV-6795, 2017 WL 4286658, at *7
(S.D.N.Y. Sept. 26, 2017); see also Haynes v. Quality Mkts., 307 F. App’x 473, 475 (2d Cir.
2008) (“[T]he United States has not waived sovereign immunity for claims . . . brought pursuant
to 42 U.S.C. §§ 1985 and 1986.”); Harrison v. Potter, 323 F. Supp. 2d 593, 604–05 (S.D.N.Y.
2004) (holding that § 1985 “do[es] not provide a remedy against the federal government” and
“[b]ecause the United States has not waived its sovereign immunity for constitutional tort claims
under the Civil Rights Act, this [c]ourt dismisses [the plaintiff’s] §§ 1981, 1983, and 1985 claims
for lack of subject matter jurisdiction”); Raghavendra v. NLRB, No. 08-CV-8120, 2009 WL
5908013, at *9 (S.D.N.Y. Aug. 27, 2009) (“[T]he civil rights statutes do not unequivocally
express the federal government’s consent to be sued and, thus, do not waive its sovereign
immunity.”). Accordingly, Plaintiff’s §§ 1985 and 1986 claims are dismissed.
C. Dismissal Without Prejudice
A complaint should be dismissed without prejudice if the pleading, “‘liberally read,’
suggests that the plaintiff has a claim that he has inadequately or inartfully pleaded and that he
should therefore be given a chance to reframe.” Cuoco v. Moritsugu, 222 F.3d 99, 112 (2d Cir.
2000) (alterations and citation omitted) (quoting Gomez v. USAA Fed Sav. Bank, 171 F.3d 794,
795 (2d Cir. 1999)). If a complaint, however, has substantive problems and “[a] better pleading
will not cure [them]” repleading may be “futile.” Id. (citing Hunt v. All N. Am. Gov’t Income
Tr., 159 F.3d 723, 728 (2d Cir. 1998)).
Here, despite failing to oppose the Motion, Plaintiff has nevertheless not been afforded an
opportunity to amend his Complaint. Regarding the FTCA claims only, there is reason to
suspect that, if given an opportunity to amend, Plaintiff might be able to cure the substantive
deficiencies in his Complaint. Therefore, Plaintiff’s FTCA claims are dismissed without
prejudice. The remainder of Plaintiff’s dismissed claims against the Government are dismissed
For the reasons discussed herein, the Government’s Motion To Dismiss is granted.
Plaintiff’s FTCA claims are dismissed without prejudice, and all other claims against the
Government are dismissed with prejudice. If Plaintiff wishes to file an Amended Complaint, he
must do so within 20 days of the date of this Opinion & Order. Failure to do so might result in
dismissal of this case. Plaintiff should include within that Amended Complaint any changes to
correct the deficiencies identified in this Opinion that Plaintiff wishes the Court to consider. The
Amended Complaint will replace, not supplement, the original complaint. The Amended
Complaint must contain all of the claims and factual allegations the Plaintiff wishes the Court to
The Clerk of the Court is to terminate the pending motion, (Dkt. No. 38), and mail a copy
of this Opinion and Order to Plaintiff.
White Plains, New York
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