Denson v. Mici

• Decision Date: 20 January 2022
• Docket Number: CIVIL ACTION NO. 21-10167-MPK
• Citation: 581 F.Supp.3d 330
• Parties: MacArthur DENSON, Plaintiff, v. Carol A. MICI, Defendant.
• Court: U.S. District Court — District of Massachusetts

581 F.Supp.3d 330

MacArthur DENSON, Plaintiff,

v.Carol A. MICI, Defendant.

CIVIL ACTION NO. 21-10167-MPK

United States District Court, D. Massachusetts.

Signed January 20, 2022

MacArthur Denson, Shirley, MA, Pro Se.

Jennifer A. Doherty, Jennifer L. Capone, Joan T. Kennedy, Massachusetts Department of Correction Legal Division, Boston, MA, for Defendant.

MEMORANDUM AND ORDERS ON PLAINTIFF'S MOTION FOR APPOINTMENT OF COUNSEL (#15) AND DEFENDANT'S MOTION TO DISMISS (#18).

M. Page Kelley, Chief United States Magistrate Judge

I. Introduction.

MacArthur Denson, an inmate at the Souza Baranowski Correctional Center (SBCC), has filed suit against Carol A. Mici, the Commissioner of the Massachusetts Department of Correction (DOC). Denson alleges that he is a devoutly practicing Muslim and that Mici's failure to provide him with pure, chemical free prayer oils violates the Religious Land Use and Institutionalized Persons Act (RLUIPA), see 42 U.S.C. § 2000cc, et seq. (#1.)

Denson has moved for appointment of counsel. (#15.) Mici has moved to dismiss. (#18.) On October 12, 2021, the court heard argument and took the motions under advisement. The court offered the parties the opportunity to submit further briefing by October 29, 2021. Denson filed a timely supplemental opposition. (#39.) In response to Denson's supplemental opposition but weeks after the October 29 deadline, Mici filed a "Notification" (#40), to which Denson has responded. (#41.)

The motions are ready for disposition. For the reasons set out below, the court denies Denson's motion for appointment of counsel without prejudice. The court denies Mici's motion to dismiss.¹

II. Plaintiff's Motion for Appointment of Counsel (#15).

There is no constitutional right to appointed counsel in a civil case. Cookish v. Cunningham , 787 F.2d 1, 2 (1st Cir. 1986) (per curiam); see DesRosiers v. Moran , 949 F.2d 15, 23 (1st Cir. 1991). Denson has been granted leave to proceed in forma pauperis (#8) and may seek appointed counsel under 28 U.S.C. § 1915(e)(1). To qualify, he must show "exceptional circumstances." Cookish , 787 F.2d at 2 ; see Minggia v. Worcester Cty. House of Corr. , No. 11-cv-40002-FDS, 2012 WL 928711, at *1 (D. Mass. Mar. 12, 2012) ("exceptional circumstances must exist such that denial of counsel will result in fundamental unfairness impinging on [plaintiff's] due process rights" (citation omitted)).

On a motion for appointment of counsel, the court weighs the totality of the circumstances. DesRosiers , 949 F.2d at 24. Relevant circumstances include the complexity of the factual and legal issues involved and plaintiff's ability to bring the case himself. Cookish , 787 F.2d at 2-3. The court may also weigh plaintiff's prior experience representing himself and the likelihood of success on the merits. Minggia , 2012 WL 928711, at *1.

Denson argues that this case will set precedent because the issue of whether a prisoner must be given access to chemical-free prayer oils is undecided. He also asserts that, while he has some experience representing himself, he is unable to properly do so here. (#15 at 1-2.)

Based on the totality of the circumstances, the court finds that Denson has not shown "exceptional circumstances." Denson appears able to adequately represent himself. He has filed appropriate motions. (#2; #3; #15; #24; #29.) He has communicated with the court and filed appropriate responses to its orders. (#5; #6; #7; #37.) His briefing in opposition to dismissal is cogent and supported by legal citations. (#34; #39; #41.) At the October 12 hearing, he ably articulated his claims.

A search of the court's records shows that Denson previously has brought two cases related to religious exercise, in 1998 and 2014. Denson v. Marshall et al. , No. 98-cv-11156-WGY; Denson v. Gelb , No. 14-cv-14317-DPW. He was never appointed counsel in the 1998 case. See Denson , No. 98-cv-11156-WGY, ECF Nos. 3, 4, 15, Docket; see also Denson v. Marshall , 59 F. Supp. 2d. 156, 156-157 (D. Mass. 1999), aff'd, Denson v. Marshall , 230 F.3d 1347 (1st Cir. 2000) (per curiam) (unpublished). Eventually, he was appointed counsel in the 2014 case, given the novelty and potential merit of his claim. See Denson , No. 14-cv-14317-DPW, ECF Nos. 4, 9, 32-33; see also Denson v. Gelb , No. 14-cv-14317-DPW, 2015 WL 4271481, at *3-4 (D. Mass. July 13, 2015).²

It is too soon to tell whether Denson's claim in this case has merit. However, responding to his argument that this is a case of first impression, the court notes that RLUIPA (and First Amendment) claims regarding access to prayer oils have been adjudicated by federal district courts. See , e.g. , Sargent v. Long , No. 17-cv-12 NAB, 2020 WL 7240443, at *7-8 (E.D. Mo. Dec. 9, 2020) ; Davis v. Powell , No. 10-cv-1891-JLS(RBB), 2011 WL 4344251, at *11-12 (S.D. Cal. Aug. 9, 2011) ; Thomas v. Little , No. 09-cv-1117-BRD/egb, 2009 WL 1938973, at *5 (W.D. Tenn. July 6, 2009) ; Charles v. Verhagen , 220 F. Supp. 2d 937, 948 (W.D. Wis. 2002). The United States District Court for the District of Connecticut adjudicated the specific claim that available prayer oils "contain[ed] chemicals that are prohibited by Islam" under RLUIPA (and the First Amendment). Vega v. Lantz , No. 04-cv-1215-DFM, 2009 WL 3157586, at *12 (D. Conn. Sept. 25, 2009) ; see Vega v. Lantz , No. 04-cv-1215-DFM, 2012 WL 5831202, at *4 (D. Conn. Nov. 16, 2012) ; Vega v. Lantz , No. 04-cv-1215-DFM, 2013 WL 6191855, at *6, *7 (D. Conn. Nov. 26, 2013) ; cf. Cryer v. Clarke , No. 09-cv-10238-PBS, 2012 WL 6800791, at *11 (D. Mass. Sept. 7, 2012) (involving "pure" tobacco for pipe ceremonies, as opposed to kinnick-kinnick with tobacco), report and recommendation adopted , No. 09-cv-10238-PBS, ECF No. 211 (Jan. 3, 2013); Farrow v. Stanley , No. 02-cv-567-PB, 2005 WL 2671541, at *5 (D.N.H. Oct. 20, 2005) (similar).

At this early stage, the legal and factual issues do not appear complicated. Furthermore, Denson appears capable of representing himself. Denial of his motion for appointment of counsel is without prejudice; he may renew his motion if exceptional circumstances arise.

III. Defendant's Motion to Dismiss (#18).

A. Legal Standard.

1. Fed. R. Civ. P. 12(b)(6).

Dismissal of a complaint under Fed. R. Civ. P. 12(b)(6) is inappropriate if the complaint satisfies Fed. R. Civ. P. 8(a)(2) ’s requirement of "a short and plain statement of the claim showing that [plaintiff] is entitled to relief," Fed. R. Civ. P. 8(a)(2) ; see Ocasio-Hernández v. Fortuño-Burset , 640 F.3d 1, 11-12 (1st Cir. 2011) ; Ashcroft v. Iqbal , 556 U.S. 662, 679, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). Detailed factual allegations are unnecessary; Rule 8(a)(2) only requires sufficient detail to provide defendant with fair notice of plaintiff's claim and the bases for it. Twombly , 550 U.S. at 555, 127 S.Ct. 1955.

Yet a complaint only shows that plaintiff is entitled to relief if the factual allegations raise that right above a speculative level. Twombly , 550 U.S. at 555, 127 S.Ct. 1955. To survive a Rule 12(b)(6) motion, a complaint must allege enough facts to state a claim that is "plausible on its face." Id. at 570, 127 S.Ct. 1955. See Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A complaint has facial plausibility when it alleges enough facts to allow the court to draw the reasonable inference that defendant is liable for the misconduct alleged. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ; see Twombly , 550 U.S. at 556, 127 S.Ct. 1955. This is not a probability requirement but demands more than a "sheer possibility" that defendant acted unlawfully. Id. ; see Twombly , 550 U.S. at 556, 127 S.Ct. 1955.

In reviewing a motion to dismiss under Rule 12(b)(6), the court must separate the factual allegations in the complaint from the legal conclusions. Factual allegations are entitled to a presumption of truth; legal conclusions are not. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. Determining whether a complaint states a facially plausible claim is a "context-specific task" that requires the court "to draw on its judicial experience and common sense." Id. at 679, 129 S.Ct. 1937 ; see Ocasio-Hernández , 640 F.3d at 12-13.

Under Rule 12(b)(6), the general rule is that the court may not consider documents outside the complaint that are not expressly incorporated by reference into the complaint, unless the court converts the motion to dismiss to a motion for summary judgment under Fed. R. Civ. P. 56. Alternative Energy, Inc. v. St. Paul Fire and Marine Ins. Co. , 267 F.3d 30, 33 (1st Cir. 2001) ; see Trans-Spec Truck Service, Inc. v. Caterpillar , 524 F.3d 315, 321 (1st Cir. 2008) ; Beddall v. State St. Bank & Trust Co. , 137 F.3d 12, 16-17 (1st Cir. 1998) ; Fudge v. Penthouse Intern., Ltd. , 840 F.2d 1012, 1015 (1st Cir. 1988). There exists a narrow exception to the general rule for, among other things, documents sufficiently referred to in the complaint and documents that are central to plaintiff's claim. Id. ; see Trans-Spec , 524 F.3d at 321 ; Beddall , 137 F.3d at 16-17 ; Fudge , 840 F.2d at 1015. If the complaint sufficiently refers to a document and its authenticity is not challenged, the document effectively "merges" into the complaint. Id. (quoting Beddall , 137 F.3d at 17 ).

2. RLUIPA.

RLUIPA provides that

[n]o government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution, as defined in [ 42 U.S.C. § 1997 ], even if the burden results from a rule of general applicability, unless the government demonstrates that the 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).

On the first two elements of a RLUIPA claim—(1) an institutionalized person's religious exercise has been burdened and (2) the burden is substantial—plaintiff...