Joseph v. Becerra
| Decision Date | 29 November 2022 |
| Docket Number | 22-cv-40-wmc |
| Parties | MARK A JOSEPH, Plaintiff, v. XAVIER BECERRA, HEALTH AND HUMAN SERVICES, ROCHELLE WALENSKY, CENTERS FOR DISEASE CONTROL AND PREVENTION, LOUIS DEJOY, and THE UNITED STATES OF AMERICA, Defendants. |
| Court | U.S. District Court — Western District of Wisconsin |
Pro se plaintiff Mark A. Joseph contends that the United States and various federal agencies and officials have or are enforcing masking requirements in response to the COVID-19 pandemic that violate his constitutional and statutory rights. Joseph also seeks preliminary injunctive relief. (Dkt. #18.) Defendants moved to dismiss Joseph's amended complaint for lack of subject-matter jurisdiction and for failure to state a claim upon which relief can be granted. (Dkt. #9.)
In response to defendants' motion to dismiss, Joseph twice moved to amend his complaint and provided a proposed second and then a proposed third amended complaint. (Dkt. ##12, 13 19, 20.) In his proposed second amended complaint, Joseph would drop 23 of his original 28 claims, as well as add a claim under 42 U.S.C. § 1983 and the Department of Veterans Affairs and its Secretary as additional defendants. Joseph would drop his § 1983 claim and add some clarifying language in this proposed third amended complaint without adding new allegations. (Dkt. #20.) Since Joseph has already amended his complaint once, he may now amend only with the court's consent, which the court must freely give “when justice so requires.” Fed.R.Civ.P. 15(a)(2).
Defendants opposed Joseph's first motion to amend, arguing that granting it would be futile because the proposed second amended complaint still fails to state a claim upon which relief can be granted. See Foman v. Davis, 371 U.S. 178, 182 (1962) (). Joseph's proposed third amended complaint drops another claim and makes some minor clerical changes. Determining whether accepting Joseph's proposed third amended complaint would be futile calls for the same analysis as a motion for dismissal under Federal Rule of Civil Procedure 12(b)(6).
Specifically, a Rule 12(b)(6) motion to dismiss tests the sufficiency of a complaint, McReynolds v. Merrill Lynch & Co., 694 F.3d 873, 878 (7th Cir. 2012), which the court may grant if a complaint lacks sufficient facts “to ‘state a claim to relief that is plausible on its face[,]'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “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.” Id. A facially plausible complaint need not give “detailed factual allegations,” but it must allege facts sufficient “to raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555. Thus, the parties' now dueling motions to dismiss and amend present two sides of the same coin: if Joseph's proposed third amended complaint cannot overcome defendants' pending objections to the amended complaint, then the court must deny leave to further amend and grant defendants' motion to dismiss. For the following reasons, the court must do just that.
ALLEGATIONS OF FACT[1]
Joseph is a combat veteran and former United States Postal Service employee. In 2020, the CDC recommended wearing a face mask indoors and in public spaces to help prevent the spread of the COVID-19 virus. The Department of Veterans Affairs (“VA”) and the Postal Service both implemented masking requirements at their facilities based on this recommendation. State and local health departments in Wisconsin allegedly did the same in order to continue receiving federal funding.
Joseph refuses to wear a mask, which he views as a medical device and religious symbol. A Christian, Joseph claims to practice his faith in part by “taking a stance against what he sees and understands to be evil or unlawful,” such as the masking requirements. (Dkt. #20 at 10.) Specifically, Joseph alleges that the masking requirements violate several of the tenets of his faith and promotes “Collectivism” over his individual rights. By promulgating a masking policy, Joseph further alleges that the federal government is seeking to establish “a nameless and covert religion/religious order” that “is a type of scientism . . . discriminatory and divisive in nature and in practice.” (Id. at 3.) For Joseph, at least, being made to wear a mask is akin to suffering forced medical treatment and to providing medical care involuntarily to those around him. Finally, Joseph alleges that promotional campaigns for masking “defame” those like himself “who are against such measures.” (Id. at 5.)
Moreover, because Joseph will not wear a mask, he has been denied employment as well as in-person medical care and has been unable to participate in local civic activities. For example, the Postal Service allegedly suspended Joseph from his job beginning in August of 2020 for refusing to wear a mask, disqualifying him from receiving unemployment benefits or “the special covid pay” available at that time. (Id. at 3.) Joseph is also unable to receive any in-person medical care at VA facilities and claims that the VA would send “the police after him” if he arrived maskless to his scheduled appointments. (Id. at 6.) Similarly, at various points during the last two years, Joseph has also been unable to attend indoor events at local public schools or participate in other local civic activities, such as jury duty, had his ability to travel and plan trips limited, and had disagreements with family about masking.
OPINIONPlaintiff has sued defendants for implementing allegedly unlawful masking requirements under multiple legal theories. He alleges violations of his First, Fifth, and Thirteenth Amendment rights under Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971), and of the Religious Freedom Restoration Act (“RFRA”). He also claims that the Postal Service violated Wisconsin law. The court will address each claim in turn.[2] I. Constitutional Claims under Bivens
In Bivens, the Supreme Court recognized an implied, civil cause of action for damages against federal officers in their individual capacities for certain constitutional violations. Engel v. Buchan, 710 F.3d 698, 703 (7th Cir. 2013). However, because plaintiff is suing the United States, some of its federal agencies and public officials in their official capacities, no Bivens claims are viable. See FDIC v. Meyer, 510 U.S. 471, 475, 484-86 (1994); see also McCloskey v. Mueller, 446 F.3d 262, 272 (1st Cir. 2006) (); Smith v. United States, 561 F.3d 1090, 1099 (10th Cir. 2009) (same).
Even if plaintiff were permitted to name any of the public officials in their individual capacities, plaintiff's specific constitutional claims could not proceed. The Supreme Court has only recognized an implied civil cause of action under Bivens in three, specific circumstances: (1) a Fourth Amendment claim against FBI agents for handcuffing a man in his home without a warrant, Bivens, 403 U.S. 388; (2) a Fifth Amendment sex discrimination claim against a congressman for firing his female administrative assistant, Davis v. Passman, 442 U.S. 228 (1979); and (3) an Eighth Amendment claim brought by a prisoner's estate against prison officials for failure to provide adequate medical care for his asthma, Carlson v. Green, 446 U.S. 14 (1980). In contrast, each of plaintiff's First, Fifth, and Thirteenth Amendment claims arise in very different circumstances from any of these three, and the Supreme Court has recently emphasized that recognizing any new cause of action under Bivens is “a disfavored judicial activity,” Egbert v. Boule, 142 S.Ct. 1793, 1803 (2022) (citation omitted), since generally “creating a cause of action is a legislative endeavor,” id. at 1802.
Plaintiff also seeks injunctive relief, but he has not stated viable constitutional claims. See Bowen v. Massachusetts, 487 U.S. 879, 893 (1988) (). Thus, as set forth in more detail below, none of the claims set forth in plaintiff's proposed third amended complaint can proceed under Bivens.
First, plaintiff unsuccessfully attempts to plead claims under the Establishment and the Free Exercise Clauses of the First Amendment.
The Establishment Clause states that Congress shall “make no law respecting an establishment of religion.” Recently, the Supreme Court explained that the Establishment Clause is to be interpreted by “reference to historical practices and understandings.” Kennedy v. Bremerton Sch. Dist., 142 S.Ct. 2407, 2428 (2022). Here, plaintiff claims that defendants have established “scientism,” a “covert” religion where science is considered “d[i]vine” and is interpreted by the CDC, a “scientific based priesthood.” (Dkt. #20 at 16.) As such, he characterizes masking requirements as “a type of ritual and/or practice of faith” that defendants then induced state and local governments into enforcing by offering federal subsidies. (Id.)
Thus plaintiff's Establishment Clause claim is not only based on a Bivens claim not yet recognized by the Supreme Court, but also on the “faulty premise” that “scienticsm” is a religion. See Daniel Chapter One v. FTC, 405 F. App'x. 505, 506 (D.C. Cir. 2010) (); cf. Peloza v. Capistrano Unified Sch. Dist., ...
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