United States District Court, E.D. Kentucky, Southern Division, London
WILLIAM A. DOYLE, III, Plaintiff,
UNITED STATES OF AMERICA, et al., Defendants.
MEMORANDUM OPINION AND ORDER
C. REEVES UNITED STATES DISTRICT JUDGE
William Doyle, III is confined at the United States
Penitentiary-McCreary (“USP-McCreary”) in Pine
Knot, Kentucky. Proceeding without an attorney, Doyle has
filed a civil rights Complaint against the United States and
Defendants Mark S. Inch (Director of the BOP), J. Ray Ormond
(Warden of USP-McCreary), Lieutenant B. Messer (supervisor at
USP-McCreary), and Officer R. Wilson (employee of
USP-McCreary). He asserts claims under 28 U.S.C. § 1331,
pursuant to the doctrine announced in Bivens v. Six
Unknown Federal Narcotics Agents, 403 U.S. 388 (1971),
the Federal Tort Claims Act, 28 U.S.C. § 2670 et
seq. (“FTCA”), the Religious Freedom
Restoration Act of 1993 (RFRA), 107 Stat. 1488, 42 U.S.C.
§ 2000bb-1 to -4, and the Fifth Amendment. [Record No.
after filing his original Complaint [Record No. 1], Doyle
filed a Supplemental Complaint [Record No. 7], seeking to add
an additional claim under the RFRA (“Count 3”)
which had not been administratively exhausted when he filed
his original Complaint. Although Doyle did not seek the
Court's permission to do so, the Court will construe the
filing of the Supplemental Complaint as a motion seeking
leave to file a supplemental pleading under Rule 15(d) of the
Federal Rules of Civil Procedure which provides that
“the court may, on just terms, permit a party to serve
a supplemental pleading setting out any transaction,
occurrence, or event that happened after the date of the
pleading to be supplemented.” The request to file the
supplemental pleading will be granted. For clarification
purposes, because the Supplemental Complaint also re-states
the same claims made in the original Complaint in full, the
Supplemental Complaint will be considered the operative
pleading in this action.
Court conducts a preliminary review of Doyle's
Supplemental Complaint because he asserts claims against
government officials. 28 U.S.C. §1915A. The Court must
dismiss any claim that is frivolous or malicious, fails to
state a claim upon which relief may be granted, or seeks
monetary relief from a defendant who is immune from such
relief. Hill v. Lappin, 630 F.3d 468, 470-71 (6th
testing the sufficiency of Doyle's Supplemental
Complaint, the Court affords it a forgiving construction,
accepting as true all non-conclusory factual allegations and
liberally construing its legal claims in the plaintiff's
favor. Davis v. Prison Health Servs., 679 F.3d 433,
437-38 (6th Cir. 2012). And while the Court has an obligation
to liberally construe a complaint filed by a person
proceeding without counsel, it has no authority to create
arguments or claims that the plaintiff has not made.
Coleman v. Shoney's, Inc., 79 F. App'x 155,
157 (6th Cir. 2003) (“Pro se parties must still brief
the issues advanced with some effort at developed
argumentation.”). Vague allegations that one or more of
the defendants acted wrongfully or violated the
plaintiff's constitutional rights are not sufficient.
Laster v. , No. 08-CV-10898, 2008 WL 1901250, at *2
(E.D. Mich. April 25, 2008).
Supplemental Complaint contains three Counts. And all
generally relate to his religious practices as a member of
the Muslim faith. [Record No. 7 at ¶9]. In Count 1,
Doyle challenges the validity of the policies of the Bureau
of Prisons (“BOP”) and USP-McCreary authorizing
inmates to pray only individually or in small groups of two
or three persons. [Id. at ¶¶54-57]
Specifically, he alleges that these policies are
“unconstitutional on their face” and as applied
to him under the RFRA. [Id. at ¶55]. In Count
2, Doyle seeks to bring an equal protection claim under the
Fifth Amendment as a “class of one, ” alleging
that there is an ongoing conspiracy by some employees at
USP-McCreary to deny him equal protection of the law.
[Id. at ¶¶58-69]. Doyle alleges in Count 3
that USP-McCreary's policies relating to the
administration of medication to him and other inmates who
fast during the month of Ramadan are “unconstitutional
on their face” and violate the RFRA. [Id. at
Doyle generally claims to be proceeding against the United
States pursuant to the FTCA, any such claim is barred by
sovereign immunity. As a sovereign entity, the United States
is immune from claims against it. United States v.
Mitchell, 463 U.S. 206, 212 (1983). Although the FTCA
constitutes a limited waiver of that immunity for the
negligence of government employees, Doyle does not allege
negligence on the part of any government employee. Moreover,
the United States has not explicitly waived sovereign
immunity for constitutional torts committed by government
employees. F.D.I.C. v. Meyer, 510 U.S. 471, 477
(1994). Thus, to the extent that Doyle seeks to pursue a
claim against the United States under the FTCA, this claim
will be dismissed for lack of subject matter jurisdiction.
alleges in his Supplemental Complaint that on two different
occasions in September 2016, he and/or other Muslim inmates
with whom he was praying were informed by Defendant Lt.
Messer that they could only pray in a group of two or three.
[Record No. 7 at ¶¶ 19-27, 29] He further contends
that the long-held policies of both the BOP and USP-McCreary
restrict inmate prayer to small groups of two to three
inmates. [Id. at ¶¶ 16, 30-32, 55]
claims in Count 1 that these policies are
“unconstitutional on their face” and as applied
to him under the RFRA. [Record No. 7 at ¶55] To prevail
on this claim, Doyle “must establish that no set of
circumstances exists under which the [challenged policies]
would be valid.” United States v. Salerno, 481
U.S. 739, 745 (1987). See also Cincinnati Women's
Services, Inc. v. Taft, 468 F.3d 361, 368 (6th Cir.
2006). While prisoners retain the right to the free exercise
of their religion, “the circumstances of prison life
may require some restrictions on prisoners' exercise of
their religious beliefs.” Walker v. Mintzes,
771 F.2d 920, 929 (6th Cir. 1985). When addressing a
challenge to a prison regulation impacting religious
expression, a court must “balance the prisoners'
constitutionally protected interest in the free exercise of
their religious beliefs against the state's legitimate
interests in operating its prisons.” Id.;
see also O'Lone v. Estate of Shabazz, 482 U.S.
342, 352 (1987). Even if a policy is found to infringe on an
inmate's First Amendment rights, “the regulation is
valid if it is reasonably related to legitimate penological
interests.” Turner v. Safley, 482 U.S. 78, 89
prison context, maintaining order and safety is a compelling
interest. See Hoevenaar v. Lazaroff, 422 F.3d 366,
369-70 (6th Cir. 2005); Jones v. Shabazz, 352 Fed.
App'x. 910, 915 (5th Cir. 2009). Moreover, circumstances
exist where limiting inmate prayer to groups of two or three
persons is reasonably related to this interest. Thus, because
there are a set of circumstances that exist under which these
policies are valid, Doyle's claim that these policies are
unconstitutional on their face fails as a matter of law. As a
result, to the extent that Count 1 alleges that the policies
are unconstitutional on their face, this portion of
Doyle's Supplemental Complaint will be dismissed.
extent that Doyle alleges that the application of these
policies to him violate the RFRA, the RFRA prohibits the
federal government from “substantially
burden[ing]” a person's exercise of religion even
if the burden results from a rule of general applicability
unless the government can demonstrate 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). Thus,
even if Doyle establishes that the policies
“substantially burdened” his exercise of
religion, there is no violation of the RFRA if the defendants
can demonstrate that applying the policies to Doyle is the
least restrictive means of furthering a compelling
governmental interest. See Equal Employment Opportunity
Comm'n v. R.G. &. G.R. Harris Funeral Homes,
Inc., No. 16-2424, ___F.3d ___, 2018 WL 1177669, at *14
(6th Cir. Mar. 7, 2018). As this is an affirmative defense,
the Court finds that a response is required with respect to
this portion of Doyle's claim in Count 1.
seeks to assert in Count 2 a “class-of-one” equal
protection claim pursuant to Bivens. This claim is
based on an allegation of an ongoing conspiracy by
USP-McCreary employees to deny him equal protection of the
law implicit in the Fifth Amendment by discriminating against
him for saying an Islamic prayer in the dining hall. [Record
No. 7 at ¶¶58-69] However, this claim is barred by
sovereign immunity to the extent Doyle seeks to pursue this
Bivens claim against the defendants in their
official capacities. A suit against a government employee in
his or her “official capacity” is not a claim
against the employee for his or her conduct while performing
job duties for the government. Instead, it is a claim against
the government agency that employs the individual. Thus, an
official capacity suit against a BOP employee is a suit
against the BOP, which is a federal agency. While
Bivens authorizes suits against federal employees
for violations of civil rights, it does not waive the
sovereign immunity enjoyed by the United States and its
agencies. Ctr. for Bio-Ethical Reform, Inc. v.
Napolitano, 648 F.3d 365, 370 (6th Cir. 2011)
(Bivens claims may be asserted against federal
officials only in their individual capacities); Okoro v.
Scibana, 63 F. App'x 182, 184 (6th Cir. 2003).
recover against a given defendant in a Bivens
action, the plaintiff “must allege that the defendant
[was] personally involved in the alleged deprivation of
federal rights.” Nwaebo v. Hawk-Sawyer, 83 F.
App'x 85, 86 (6th Cir. 2003) (citing Rizzo v.
Goode, 423 U.S. 362, 373-77 (1976)). The mere fact of
supervisory capacity is not enough: respondeat superior is
not an available theory of liability. Polk County v.
Dodson, 454 U.S. 312, 325-26 (1981). The only defendants
that Doyle suggests were personally involved in the alleged
conspiracy to deprive him of his equal protection rights are
Lt. Messer and Officer Wilson. Thus, he alleges no basis for
imposing liability on Director Inch or Warden Ormond
regardomg this claim.
to state a claim alleging a Bivens conspiracy, Doyle
must allege “an agreement between two or more persons
acting in concert to deprive a person of his constitutional
rights, and an overt act done in furtherance of the
conspiracy causing injury.” Uduko v. Cozzens,
975 F.Supp.2d 750, 757 (E.D. Mich. 2013) (citing Hooks v.
Hooks, 771 F.2d 935, 943-44 (6th Cir.1985)). “It
is well-settled that conspiracy claims must be pled with some
degree of specificity and that vague and conclusory
allegations unsupported by material facts will not be
sufficient to state a claim.” Gutierrez v.
Lynch, 826 F.2d 1534, 1538 (6th Cir. 1987). Here, Doyle
fails to allege the existence of an agreement between
“some employees at USP-McCreary” to discriminate
against him with any specificity, nor does he
otherwise allege facts to support such a claim. Nor does he
allege any facts to support his conclusory allegation that
the defendants acted with discriminatory intent. Ashcroft
v. Iqbal, 556 U.S. 662, 686 (2009) (Federal Rules of
Civil Procedure “do not require courts to credit a
complaint's conclusory statements” of
discriminatory intent “without reference to its factual
context.”). At best, Doyle alleges a series of acts by
different individuals. He then asserts, based on nothing but
his own conclusions, that these actions were part of a
conspiracy to discriminate against him based on his religion.
Such vague and conclusory allegations unsupported by facts
are insufficient to state a conspiracy claim. Uduko,
975 F.Supp.2d at 757.
Doyle purports to bring this claim as a “class of
one” claim. [Record No. 7 at ¶ 68] In a
class-of-one equal protection claim, the plaintiff
“does not allege that the defendants discriminate
against a group with whom she shares
characteristics, but rather that the defendants simply harbor
animus against [him or] her in particular and
therefore treated [him or] her arbitrarily.”
Davis, 679 F.3d at 441 (quoting Lazy Y Ranch
Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008)
(emphasis in original)). To state such a claim, a plaintiff
must allege that he, as an individual, has been
“intentionally treated differently from others
similarly situated and that there is no rational basis for