Chichakli v. Director of the Federal Bureau of Prisons et al

Filing 61

ORDER denying 36 Motion to Dismiss; granting 37 Motion to Dismiss; adopting Report and Recommendations re 55 Report and Recommendation. Case Re-Referred to Magistrate Jones. Signed by Honorable Timothy D. DeGiusti on 5/11/2016. (mb)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF OKLAHOMA
RICHARD AMMAR CHICHAKLI,
Plaintiff,
v.
CHARLES E. SAMUELS, JR.,
Director, Federal Bureau of Prisons,
et al.,
Defendants.

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Case No. CIV-15-687-D

ORDER
Plaintiff Richard Ammar Chichakli, a federal prisoner appearing pro se and in forma
pauperis, brings this action under 42 U.S.C. § 1983, Bivens v. Six Unknown Named Agents
of the Federal Bureau of Narcotics, 403 U.S. 388 (1971), and the Religious Freedom
Restoration Act (RFRA), 42 U.S.C. § 2000bb-1. Plaintiff alleges violations of his civil rights
when he was denied kosher meals, access to religious material and clothing, and the full
ability to practice the tenets of his faith while temporarily detained at Grady County Jail.
Plaintiff seeks declaratory relief and monetary damages.
The matter was referred to United States Magistrate Judge Bernard M. Jones for initial
proceedings consistent with 28 U.S.C. § 636(b). On March 10, 2016, Judge Jones issued a
Report and Recommendation [Doc. No. 55] in which he recommended the Court deny
Defendant Mike Lennier’s (“Defendant Lennier”) Motion to Dismiss or in the Alternative
Motion for Summary Judgment [Doc. No. 36].1 Judge Jones further recommended the Court

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Judge Jones declined to consider the motion for summary judgment. See R. & R. [Doc. No. 55] at

9 n.10.

grant Defendants Charles Samuels, Jr. and Stacia A. Hylton’s2 (collectively, the “Federal
Defendants”) Motion to Dismiss [Doc. No. 37] and, pursuant to Fed. R. Civ. P. 12(b)(1),
dismiss without prejudice on grounds of sovereign immunity Plaintiff’s Bivens and RFRA
claims seeking monetary damages from the Federal Defendants.
Plaintiff filed a timely objection (“Plaintiff’s Objection”) [Doc. No. 57] on March 31,
2016, objecting to the dismissal of claims against the “BOP” and “US Marshals.” Pl.’s Obj.
[Doc. 57] at 1. Additionally, Defendants Lennier and Shane Wyatt (Defendant Wyatt)3 filed
a joint objection (“Defendants’ Objection”) [Doc. No. 56] on March 25, 2016. Defendant
Lennier objects to the denial of his Motion to Dismiss or in the Alternative Motion for
Summary Judgment.

Defendant Wyatt generally objects to the entire Report and

Recommendation “as the Magistrate [Judge] did not even consider the Special Report which
had been entered.” Defs.’ Obj. [Doc. No. 56] at 1. The Court, having conducted a de novo
review,4 finds that both Plaintiff’s and Defendants’ Objections are overruled, and adopts the
Report and Recommendation in its entirety.
BACKGROUND
While in transit between United States Bureau of Prisons (“BOP”) facilities, Plaintiff
was temporarily detained at the Grady County Jail from February 10, 2015, through February

2

Stacia A. Hylton is no longer Director of the United States Marshals Service. Hereinafter, and
pursuant to Fed. R. Civ. P. 25(d), David L. Harlow will be substituted as a named party.
3

Defendant Wyatt answered Plaintiff’s Complaint, but did not move for dispositve relief. See R. &
R. [Doc. No. 55] at 1 n.1.
4

Pursuant to Fed. R. Civ. P. 72(b)(3), where the district court refers dispositive matters to a
magistrate judge for a report and recommendation, the district court “must determine de novo any part of the
magistrate judge’s disposition that has been properly objected to.” Id.; Birch v. Polaris Indus., Inc., 812 F.3d
1238, 1246 (10th Cir. 2015).

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24, 2015.5 Plaintiff alleges that during his detainment, and despite the BOP’s pre-approval,
he was denied the ability to practice the tenets of his faith. Plaintiff further alleges the meals
he received were not kosher, and that he was denied access to personal items of religious
clothing and a prayer book. Plaintiff brings this action against two federal and two state
defendants, each in their official capacity: Defendant Samuels, Director of the BOP;
Defendant Harlow, Acting Director, United States Marshals Service; Defendant Wyatt,
Director, Grady County Criminal Justice Authority; and Defendant Lennier, Grady County
Commissioner, Grady County District 2, State of Oklahoma.
The Federal Defendants have moved for dismissal of Plaintiff’s Bivens and RFRA
claims pursuant to Fed. R. Civ. P. 12(b)(1) on grounds of sovereign immunity.6 Defendant
Lennier has moved for dismissal of Plaintiff’s § 1983 claims pursuant to Fed. R. Civ. P.
12(b)(6) on grounds that Plaintiff failed to allege facts demonstrating that he or the Board of
County Commissioners of Grady County (the “Board”) had any direct involvement in, or
final policy-making authority over, the alleged violations of Plaintiff’s rights while at Grady
County Jail.

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Plaintiff’s detainment was pursuant to a contract between the BOP and Grady County Jail to provide
housing, safekeeping, and subsistence to federal prisoners in transit.
6

The Federal Defendants also moved for dismissal of Plaintiff’s RFRA claims for failure to exhaust
administrative remedies as required by 42 U.S.C. § 1997e(a), and failure to allege facts demonstrating a
substantial burden on religious exercise as required by 42 U.S.C. § 2000bb-1(c). However, their motion can
be decided on grounds of sovereign immunity, so the Court declines to address the Federal Defendants’ other
grounds for dismissal.

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DISCUSSION
I. Governing Standards
“Motions to dismiss for lack of subject matter jurisdiction ‘generally take one of two
forms: (1) a facial attack on the sufficiency of the complaint’s allegations as to subject matter
jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is
based.’” City of Albuquerque v. U.S. Dept. of the Interior, 379 F.3d 901, 906 (10th Cir. 2004)
(quoting Ruiz v. McDonnell, 299 F.3d 1173, 1180 (10th Cir. 2002), cert. denied, 538 U.S.
999 (2003)). The Federal Defendants’ Motion to Dismiss pursuant to Fed. R. Civ. P.
12(b)(1) presents a facial attack on the sufficiency of Plaintiff’s Complaint to establish
subject matter jurisdiction. Therefore, the Court confines its review to the pleadings and
accepts as true the allegations in the Complaint. See Peterson v. Martinez, 707 F.3d 1197,
1205-06 (10th Cir. 2013); Holt v. U.S., 46 F.3d 1000, 1002 (10th Cir. 1995).
When considering whether Plaintiff’s claims should be dismissed under Fed. R. Civ.
P. 12(b)(6), the Court accepts as true all well-pleaded factual allegations, and views them in
the light most favorable to Plaintiff. S.E.C. v. Shields, 744 F.3d 633, 640 (10th Cir. 2014).
However, Plaintiff’s Complaint must “‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007)); see Robbins v. Okla., 519 F.3d 1242, 1247 (10th Cir. 2008). “A claim
has facial plausibility when the plaintiff pleads factual content that allows the court to draw
the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556
U.S. at 678. “[W]here the well-pleaded facts do not permit the court to infer more than the
possibility of misconduct, the complaint has alleged – but it has not “show[n]” – “that the
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pleader is entitled to relief.” Id. at 679 (quoting Fed. R. Civ. P. 8(a)(2)). Thus, in assessing
plausibility, the Court will first disregard conclusory allegations and “next consider the
factual allegations in [the] complaint to determine if they plausibly suggest an entitlement
to relief.” Id. at 681.
II. Analysis
Bivens Claims
Plaintiff’s Bivens claims for monetary damages against the Federal Defendants in their
official capacity must be dismissed on grounds of sovereign immunity. See Hatten v. White,
275 F.3d 1208, 1210 (10th Cir. 2002) (finding absent a waiver, “[a] Bivens action may not
be brought against federal ... agents acting in their official capacities”). Plaintiff’s Objection
asks the Court to reconsider the Report and Recommendation because “Bivens [does] ...
allow[] courts to recognize a cause of action ... against ... individual officials for
unconstitutional conduct.” Pl.’s Obj. [Doc. No. 57] at 1. Without addressing whether
Plaintiff’s claims are generally actionable under Bivens, the Court concludes that dismissal
of Plaintiff’s Bivens claims against the Federal Defendants is proper because “[e]ven in
circumstances in which a Bivens remedy is generally available, an action under Bivens will
be defeated if the defendant is immune from suit.” Hui v. Castaneda, 559 U.S. 799, 807
(2010).

RFRA Claims

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Plaintiff’s RFRA claims for monetary damages against the Federal Defendants in their
official capacity must also be dismissed on grounds of sovereign immunity. Although RFRA
is “applicable to federal officials,” the United States Government has not unequivocally
waived its sovereign immunity for monetary damages awards under RFRA.7 Kikumura v.
Hurley, 242 F.3d 950, 960 (10th Cir. 2001). Because “Congress did not unequivocally waive
its sovereign immunity in passing RFRA,” the Act “does not therefore authorize suits for
money damages against [federal] officers in their official capacities.” Davila v. Gladden,
777 F.3d 1198, 1210 (11th Cir. 2015).
§ 1983 Claims
The Court declines to dismiss Plaintiff’s § 1983 claims against Defendant Lennier in
his official capacity. Defendant Lennier maintains that he is an improper party to this suit
because neither he, nor the Board, had any direct involvement in, or final policy-making
authority over, the events that gave rise to this litigation. The Court finds that, as a matter
of law, neither of these reasons shield Grady County from potential liability in this case.
In support of his objection, Defendant Lennier cites Jantzen v. Hawkins, 188 F.3d
1247 (10th Cir. 1999) for the proposition that “a municipality cannot be liable under § 1983
for acts of a municipal officer in his official capacity ‘unless that official possesses final

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“A waiver of the Federal Government's sovereign immunity must be unequivocally expressed in
statutory text ... and will not be implied.” Lane v. Pena, 518 U.S. 187, 192 (1996) (citing U.S. v. Nordic Vill.,
Inc., 503 U.S. 30, 33–34, 37 (1992); Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89, 95 (1990)). “Moreover,
a waiver of the Government's sovereign immunity will be strictly construed, in terms of its scope, in favor
of the sovereign.” Id. (citing U.S. v. Williams, 514 U.S. 527, 531 (1995) (“[W]hen confronted with a
purported waiver of the Federal Government's sovereign immunity, the Court will ‘constru[e] ambiguities
in favor of immunity.’”)). “To sustain a claim that the Government is liable for awards of monetary damages,
the waiver of sovereign immunity must extend unambiguously to such monetary claims.” Id. (citing Nordic
Vill., 503 U.S. at 34).

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policymaking authority to establish municipal policy with respect to acts in question.’” Id.
at 1259 (quoting Houston v. Reich, 932 F.2d 883, 887 (10th Cir.1991)). Defendant Lennier
is misguided in his application, however, because Plaintiff is not suing Grady County for the
acts of Defendant Lennier, but rather suing Grady County through Defendant Lennier and
the Board.8 The Board is not a separate entity from Grady County,9and Defendant Lennier,
as Grady County Commissioner, is a proper party to this suit if “[a] claim against the county
is stated.” Snow, supra note 7 (emphasis in original); see also OKLA. STAT. tit. 19, § 4
(identifying the Board of County Commissioners as the proper party in a suit against a
county).
In further support of his objection, Defendant Lennier distinguishes the Grady County
Sheriff from the Grady County Criminal Justice Authority, a Public Title 60 Trust (the
“Trust”). Here, the Trust, not the Sheriff, runs the Grady County Jail, which Defendant
Lennier contends precludes himself and the Board from liability regarding incidents
occurring at the Grady County Jail.10 Although, unlike the Board, the Trust is a distinct legal
entity from Grady County, it was created “for the furtherance ... of any public function which

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“A claim against a government actor in his official capacity ‘is essentially another way of pleading
an action against the county or municipality’ he represents, and is considered under the standards applicable
to 42 U.S.C. § 1983 claims against ... counties.” DuBois v. Bd. of Cty. Comm’rs. of Mayes Cty., No. 12-CV677-JED, 2014 WL 4810332 at *4 (N.D. Okla. Sept. 29, 2014) (unpublished op.) (quoting Porro v. Barnes,
624 F.3d 1322, 1328 (10th Cir. 2010) ; “A suit brought against a county’s board of county commissioners
is the way Oklahoma law contemplates suing the county.” Snow,v. Bd. of Cty. Comm’rs. of McClain Cty.,
CIV-14-911-HE, 2014 WL 7335319 at *2 (W.D. Okla. Dec. 19, 2014).
9

See Snow, supra note 7 (finding “[u]nder Oklahoma law, a county’s board of county commissioners
is not a separate legal entity from the county.”).
10

Defendant argues that the language of OKLA. STAT. tit. 60 § 176.1 identifying a Title 60 trust as
“a legal entity separate and distinct,” whose “affairs ... shall be separate and independent” from the
beneficiary, guarantees immunity for Grady County. Id. § 176.1 (A), (D).

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[the county] might be authorized by law to perform.” Tulsa Cty. Deputy Sheriff’s F.O.P.,
Lodge No. 188 v. Bd. of Cty. Comm’rs of Tulsa Cty.,995 P.2d 1124, 1131 (Okla. 2000)
(emphasis added); see also OKLA. STAT. tit. 60 § 176.1 (B)(3). Therefore, Defendant
Lennier’s contention that holding Grady County liable for actions of the Trust is akin to
holding Grady County liable for acts of a different county or city government11 is unfounded,
because the Trust acts in furtherance of Grady County’s authority and in no way guarantees
immunity to Grady County.
“To hold a county ... liable under § 1983, a plaintiff must demonstrate (1) the
existence of a municipal policy or custom by which the plaintiff was denied a constitutional
right and (2) that the policy or custom was the moving force behind the constitutional
deprivation.” DuBois, supra note 7 (citing City of Canton v. Harris, 489 U.S. 378, 385
(1989); Monell v. Dep’t of Soc. Servs. Of City of New York, 436 U.S. 658, 694 (1978);
Bryson v. City of Okla. City, 627 F.3d 784, 788 (10th Cir. 2010)). Here, Plaintiff alleges that
the Grady County Jail failed to follow BOP policies and, instead, regularly follows a practice
of failing to provide kosher meals. Plaintiff’s allegations demonstrate a “practice” of the
Trust that qualifies as “an official policy or custom for § 1983 municipal-liability purposes.”
Schneider v. City of Grand Junction Police Dept., 717 F.3d 760, 770 (10th Cir. 2013). These
allegations, when taken as true and viewed in the light most favorable to Plaintiff, are
sufficient to meet the plausibility requirements of pleading. No more is required of Plaintiff
at this stage, and Defendant Lennier’s Motion to Dismiss is denied.
Defendant Wyatt’s Objection
11

See Def.s’ Obj. [Doc. No. 56] at 5.

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The Court declines to consider Defendant Wyatt’s general objection to the Report and
Recommendation, as it raises material not previously presented in a dispositive motion. See
Marshall v. Chater, 75 F.3d 1421, 1426 (10th Cir. 1996) (holding “[i]ssues raised for the first
time in objections to the magistrate judge’s recommendation are deemed waived.”); see also
ClearOne Commc'ns, Inc. v. Biamp Sys., 653 F.3d 1163, 1184-85 (10th Cir. 2011);
Abdulhaseeb v. Calbone, 600 F.3d 1301, 1310 (10th Cir. 2010).
CONCLUSION
The Court has conducted the de novo review required by 28 U.S.C. § 636(b) of “those
portions of the report ... to which objection is made.” Id. Upon review, the recommendation
of Magistrate Judge Jones will be followed.
IT IS THEREFORE ORDERED that the Report and Recommendation [Doc. No. 55]
is ADOPTED in its entirety. The Federal Defendants’ Motion to Dismiss [Doc. No. 37] is
GRANTED, and Plaintiff’s Bivens and RFRA claims for monetary damages against the
Federal Defendants are hereby dismissed without prejudice pursuant to Fed. R. Civ. P.
12(b)(1). Defendant Lennier’s Motion to Dismiss or in the Alternative Motion for Summary
Judgment [Doc. No. 36] is DENIED.
IT IS FURTHER ORDERED that this matter is re-referred to Judge Jones for further
proceedings consistent with the initial case referral.
IT IS SO ORDERED this 11th day of
May, 2016.

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