Daker v. Ferrero

• Decision Date: 26 February 2007
• Docket Number: Civil Action No. 1:03-CV-02481-RWS.
• Citation: 475 F.Supp.2d 1325
• Parties: Waseem DAKER, Plaintiff, v. Joe FERRERO, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

Page 1325

475 F.Supp.2d 1325

Waseem DAKER, Plaintiff, v. Joe FERRERO, et al., Defendants.

Civil Action No. 1:03-CV-02481-RWS.

United States District Court, N.D. Georgia, Atlanta Division.

February 26, 2007.

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Waseem Daker, Duluth, GA, pro se.

Devon Orland, Office of State Attorney General, John C. Jones, Freeman Mathis & Gary, Aaron B. Mason, State of Georgia Law Department, Atlanta, GA, for Defendants.

ORDER

STORY, District Judge.

This case comes before the Court for resolution of Defendants' Motion for Summary Judgment [220]; Plaintiff's Motion for Summary Judgment [234]; and Plaintiff's Motion to Amend his Complaint [245]. After reviewing the record, the Court enters the following Order.

Background

Plaintiff, proceeding pro se, initiated this civil action in August 2003 against Defendant Joe Philip Ferrero, Acting Commissioner of the Georgia Department of Corrections ("GDC"), and numerous prison officials. In his Fourth Amended Complaint, Plaintiff asserts nineteen claims pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc-1 et seq., challenging aspects of his confinement in various GDC prison facilities. Specifically, Plaintiff challenges: (i) a requirement that he "stand at attention" in the presence of prison officials; (ii) a restriction on his wearing of a Kufi, a traditional article of Muslim headdress; (iii) a denial of his request to possess a digital device containing the text of the Qur'an; (iv) content-based restrictions on the sending and receiving of prisoner mailings and publications; and (v) the sufficiency of the procedures afforded to inmates and senders of mail when prisoners are denied certain mailings and publications.¹ On October 25, 2005, Plaintiff was released from prison, but he continues to pursue this litigation.

This Court has previously dismissed on sovereign immunity and mootness grounds Plaintiff's claims against Defendants in their official capacities.² The Court has also dismissed Plaintiff's digital-Qur'an claim, after finding that Defendants were entitled to qualified immunity because the right to a digital Qur'an was not clearly established. See Daker v. Ferrero, No. 1:03-CV-02481, 2006 WL 346440, at *2 (N.D.Ga. Feb. 13, 2006) [hereinafter Daker I] (discussing Order of Aug. 15, 2005).

The Court now takes up Plaintiff's remaining claims, which, by virtue of the Court's previous rulings, are brought solely against Defendants in their individual capacities.

Discussion

I. Preliminary Matters

A. Plaintiff's Claims Brought as a Non-Prisoner

Following Plaintiff's release from prison in October 2005, Plaintiff sought to amend his Complaint for a fourth time to add several claims arising both during his incarceration and after he was released from prison. By previous Order, the Court granted Plaintiff leave to add his claims arising out of his incarceration, but denied Plaintiff leave to add claims arising after his release, finding that "Plaintiff's release from prison altered his position in such a dramatic and fundamental way that claims brought in his capacity as a non-incarcerated citizen should not be conflated with those he initiated as a prisoner." Daker I, 2006 WL 346440, at *6.

Plaintiff's Fourth Amended Complaint asserts two claims as a non-prisoner. Claim 5 alleges that due process requires that the sender of mail to a prisoner be afforded notice and an opportunity to appeal a decision by prison officials to censor the mail. (See Fourth Am. Compl. ¶ 85.) Similarly, Claim 9 alleges that due process requires a sender of a publication to a prisoner to be afforded notice and an opportunity to appeal a censorship decision. (See id. ¶ 89.) In its previous Order, the Court declined to grant Plaintiff leave to assert as a non-prisoner claims arising after his release from prison. As such, the Court hereby DISMISSES without prejudice Claims 5 and 9.³ (See Pl.'s Compl. ¶¶ 85, 89.)

B. Plaintiff's Motion for Leave to Amend

By Order dated January 3, 2007, this Court observed that Plaintiff's Fourth Amended Complaint appeared to omit any claims against Defendants in their individual capacities. In view of Plaintiff's pro se status, the Court allowed Plaintiff to show cause as to why the Court should not treat Plaintiff's omission as a waiver or an abandonment of his individual-capacity claims. Plaintiff has since sought leave to correct his "typographical" error, by amending his Fourth Amended Complaint to include the word "individual" in place of or in addition to "official" where relevant. Plaintiff points out that, in all previous renditions of his Complaint, he has included claims against Defendants in their individual capacities, and has otherwise aggressively pursued those claims in his summary judgment papers.

Having considered the filings on this matter, the Court concludes that Plaintiff has made a sufficient showing that he did not abandon or waive his claims against Defendants in their individual capacities by omitting them from his Fourth Amended Complaint. Moreover, the Court finds that Defendants, who have fully briefed for purposes of summary judgment their defenses to Plaintiff's individual-capacity claims, and have otherwise conducted their efforts in this litigation consistent with an understanding that Plaintiff has maintained individual-capacity claims, will not be prejudiced by the Court granting Plaintiff leave to amend. The Court reads Plaintiff's Complaint to assert claims against Defendants in their individual capacities. Accordingly, Plaintiff's Motion to Amend his Complaint [245] is GRANTED.

Having resolved these preliminary matters, the Court turns to address the merits of the parties motions for summary judgment.

II. Summary Judgment Standard

Summary judgment is appropriate only when the pleadings, depositions, and affidavits submitted by the parties show that no genuine issue of material fact exists and that the movant is entitled to judgment as a matter of law. FED.R.CIV.P. 56(c). The court should view the evidence and any inferences that may be drawn from it in the light most favorable to the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The party seeking summary judgment must first identify grounds that show the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-movant, who must go beyond the pleadings and present affirmative evidence to show that a genuine issue of material fact does exist. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 257, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

III. Individual Capacity Claims under RLUIPA

As an initial matter, the Court turns to examine whether RLUIPA authorizes Plaintiff to recover damages against Defendants in their individual capacities. In a previous Order, the Court examined this question and, while not definitively resolving it, tentatively concluded that RLUIPA permits suit against prison officials in their individual capacities⁴ See Daker I, 2006 WL 346440, at *10. Since the entry of that Order, however, the Court has had the occasion to consider a new argument, in part raised by Defendants, in support of their contention that RLUIPA does not authorize suits for monetary damages against individuals. After reconsidering the issue, the Court now concludes that, because construing RLUIPA to authorize individual damages actions would raise a substantial question concerning its constitutionality under the Spending and Commerce Clauses of the United States Constitution, the constitutional avoidance canon compels this Court to construe RLUIPA against authorizing such actions. Plaintiff's sole remedy at law, therefore, lies in 42 U.S.C. § 1983.

A. Constitutional Avoidance Canon

Under the canon of constitutional avoidance, "where a statute is susceptible of two constructions, by one of which grave and doubtful constitutional questions arise and by the other of which such questions are avoided, our duty is to adopt the latter." Jones v. United States, 526 U.S. 227, 239, 119 S.Ct. 1215, 143 L.Ed.2d 311 (1999) (quoting United States ex rel. Attorney General v. Delaware & Hudson Co., 213 U.S. 366, 408, 29 S.Ct. 527, 53 L.Ed. 836 (1909)). In a more recent iteration of the rule, the Supreme Court has said that, "when deciding which of two plausible statutory constructions to adopt, a court must consider the necessary consequences of its choice. If one of them would raise a multitude of constitutional problems, the other should prevail-whether or not those constitutional problems pertain to the particular litigant before the Court." Clark v. Martinez, 543 U.S. 371, 380-81, 125 S.Ct. 716, 160 L.Ed.2d 734 (2005).

The avoidance canon "rests upon our `respect for Congress, which we assume legislates in the light of constitutional limitations.'" Harris v. U.S., 536 U.S. 545, 556, 122 S.Ct. 2406, 153 L.Ed.2d 524 (2002) (quoting Rust v. Sullivan, 500 U.S. 173, 191, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991)). It is an "axiom of statutory interpretation," Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 466, 109 S.Ct. 2558, 105 L.Ed.2d 377 (1989), which "allows courts to avoid the decision of constitutional questions ... on the reasonable presumption that Congress did not intend the alternative which raises serious constitutional doubts." Clark, 543 U.S. at 381, 125 S.Ct. 716 (citing Rust, 500 U.S. at 191, 111 S.Ct. 1759); see also Public Citizen, 491 U.S. at 466, 109 S.Ct. 2558 (stating that courts are "loath to conclude that Congress intended to press ahead into dangerous constitutional thickets in the absence of firm evidence that it courted those perils"); United States v. Lovett, 328 U.S. 303, 320, 106 Ct.Cl. 856, 66 S.Ct. 1073,...