McGirt v. Whitten, Case No. CIV-20-157-D

• Decision Date: 23 November 2020
• Docket Number: Case No. CIV-20-157-D
• Parties: JIMCY MCGIRT, Plaintiff, v. RICK WHITTEN, Warden, et al., Defendants.
• Court: U.S. District Court — Western District of Oklahoma

JIMCY MCGIRT, Plaintiff, v. RICK WHITTEN, Warden, et al., Defendants.

Case No. CIV-20-157-D

UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF OKLAHOMA

November 23, 2020

REPORT AND RECOMMENDATION

Plaintiff, a prisoner appearing pro se, filed a "Petition for Writ of Prohibition/Mandamus" in the District Court of Oklahoma County, challenging Oklahoma Department of Correction's (DOC) policy restricting the display of his Native American religious items while housed at the James Crabtree Correctional Center. Doc. 1, Ex. 2.¹ Defendants removed the action to this Court. Doc. 1. Chief United States District Judge Timothy D. DeGiusti referred the matter to the undersigned Magistrate Judge for initial proceedings consistent with 28 U.S.C. § 636(b)(1)(B). Before the Court is Defendants' motion to dismiss Plaintiff's action as moot because he is no longer in state custody, initially filed before Plaintiff's transfer to federal custody and latersupplemented with the Court's leave. See Docs. 11, 32. Plaintiff responded to Defendants' initial motion, Doc. 23, but failed to respond to the Court's order to show cause why it should not dismiss his claims in light of his transfer, Doc. 34. For the reasons below, the undersigned recommends the Court grant in part Defendants' motion and dismiss with prejudice Plaintiff's federal claims, and remand to state court his state-law claims.

I. Plaintiff's claims.

Plaintiff claims Defendants demoted his earned credit level (ECL) and paygrade for "exercising his sincerely held Native American religious beliefs" when displaying his sacred items—feathers and a dreamcatcher—on his bunk. Doc. 1, Ex. 1, at 1. Plaintiff seeks "a writ of prohibition/mandamus to stop [Defendants'] actions (reducing him to lower ECLs and pay) for practicing his Native American Religious beliefs" or alternatively "compel [Defendants] to recognize [his] Freedom of Religion rights." Id. at 4. Plaintiff also seeks a declaration of his rights to exercise his religious beliefs under the Religious Land Use and Institutionalized Persons Act (RLUIPA), and damages exceeding $10,000 under the Oklahoma Religious Freedom Act (ORFA). Id. Ex. 7, at 1.

Defendants sought to dismiss Plaintiff's claims arguing that because the "alleged controversies cease to exist," his claims were moot. Doc. 11, at 2-5. First, Defendants noted DOC restored Plaintiff back to his previous ECL andpaygrade. Id. at 3-4. Second, they acknowledged DOC's policies now allow the hanging of dreamcatchers in bunks. Id. at 4. Alternatively, Defendants argued Plaintiff's claims failed to meet the requirements for the issuance of a writ of mandamus, and Plaintiff's claims are not valid under RLUIPA or ORFA as neither offer Plaintiff's requested relief. Id. at 5-15.

Plaintiff responded, arguing that although DOC policy now allows the hanging of his dreamcatcher, they still prohibit his feathers, so the controversy still exists. Doc. 23, at 3. Plaintiff also argued that RLUIPA provides "recognition and protection of [his] Native American religious beliefs" and "ORFA provides a declaration and damages from that declaration 51 O.S. § 256." Id. at 4.

On August 12, 2020, DOC released Plaintiff into federal custody. Doc. 32, Ex. 1. Defendants, with the Court's leave, filed a sur-reply arguing that Plaintiff's transfer to federal custody moots his claims because he is no longer subject to DOC's policies. Doc. 32. The Court ordered Plaintiff to respond to Defendants' new arguments and "why the Court should not dismiss his federal claims seeking declaratory or injunctive relief and his state-law claims seeking monetary damages" but Plaintiff has not responded.²

II. Standard of review.

Federal Rule of Civil Procedure 12(b)(6) provides that a party may move to dismiss a claim for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). "The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the [petition] alone is legally sufficient to state a claim for which relief may be granted." Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (citations omitted). In reviewing sufficiency, "[a]ll well-pled factual allegations are accepted as true and viewed in the light most favorable to the nonmoving party." Peterson v. Grisham, 594 F.3d 723, 727 (10th Cir. 2010). If the allegations state a plausible claim for relief, these claims survive the motion to dismiss. Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility . . . ." Id. (internal quotation marks and citation omitted).

Although Plaintiff responded to Defendants' motion to dismiss, he failed to address the mootness argument Defendants raise in their sur-reply after his transfer to federal custody, despite the Court ordering him to do so. Doc. 34. Still, the undersigned examines Plaintiff's claims in determining whether to dismiss on the grounds of mootness. See, e.g., Issa v. Comp USA, 354 F.3d 1174, 1178 (10th Cir. 2003) (When the non-moving party fails to file a response to a motion to dismiss for failure to state a claim, "the district court must stillexamine the allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim upon which relief can be granted."); Persik v. Manpower Inc., 85 F. App'x 127, 130 (10th Cir. 2003) (where pro se litigant failed to file a response to a motion to dismiss his action, the district court satisfied procedural requirements for dismissing it under Rule 12(b)(6) by sufficiently analyzing the reasons the plaintiff failed to state a claim, and noting his failure to respond and deeming it a concession of defendant's arguments after analyzing the issue).

This Court construes a pro se litigant's pleadings liberally and holds them "to a less stringent standard than formal pleadings drafted by lawyers." Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991); see Haines v. Kerner, 404 U.S. 519, 520 (1972) (per curiam). The Court, however, may not serve as Plaintiff's advocate, creating arguments on his behalf. See Yang v. Archuleta, 525 F.3d 925, 927 n.1 (10th Cir. 2008). Additionally, a litigant's pro se status does not excuse him from complying with the fundamental requirements of the Federal Rules of Civil Procedure. See Ogden v. San Juan Cty., 32 F.3d 452, 455 (10th Cir. 1994).

III. Discussion.

A. RLUIPA claims.

Plaintiff claims that DOC policy prohibiting him from hanging his sacred items violates RLUIPA, arguing that "[n]o government shall impose asubstantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that implication of that burden on that person: (1) is of a compelling governmental interest . . . ." Doc. 1, Ex. 7, at 3-4; see 42 U.S.C. § 2000cc-1(a). He argues hanging the items pose "no presumptive or direct threat of danger to" him or others, and no government interest exists in prohibiting them. Doc. 1, Ex. 7, at 5. Plaintiff failed to indicate if his action is against Defendants in their official and/or individual capacities, so the Court liberally construes it is in both capacities. See Doc. 1, Exs. 2, 7; see, e.g., James v. Argeys, No. 14-CV-00983-CBS, 2015 WL 881691, at *8 (D. Colo. Feb. 26, 2015) (Where Plaintiff's complaint "does not clearly indicate whether [the defendant] is being sued in his individual capacity, his official capacity, or both," "the court will presume that [the defendant] has been sued both in his official and individual capacities.").

The Court lacks subject-matter jurisdiction over a case that is moot. Warner v. Patterson, 534 F. App'x 785, 788 (10th Cir. 2013). "When it becomes impossible for a court to grant effective relief, a live controversy ceases to exist, and the case becomes moot." Abdulhaseeb v. Calbone, 600 F.3d 1301, 1311 (10th Cir. 2010) (citation omitted). As Defendants argue, RLUIPA does not provide for monetary damages or a cause of action for individual-capacityclaims.³ Doc. 11, at 9-10; see Sossamon v. Texas, 131 S. Ct. 1651, 1663 (2011); Stewart v. Beach, 701 F.3d 1322, 1335 (10th Cir. 2012). "The only relief available to [Plaintiff] under RLUIPA is declaratory and injunctive relief against defendants in their official capacities." Warner, 534 F. App'x at 788. But a prisoner's release from or transfer out of a detention facility generally moots claims for declaratory and injunctive relief concerning conditions in that facility. Id. (dismissing as moot plaintiff's RLUIPA claims after he was no longer in custody of state DOC); see also Jordan v. Sosa, 654 F.3d 1012, 1027 (10th Cir. 2011) ("Where the prisoner's claims for declaratory or injunctive relief relate solely to the conditions of confinement at the penal institution at which the prisoner is no longer incarcerated," transfer between prisons moots claims for such relief against officials at former prison because the court is "unable to provide the prisoner with effective relief.").

Plaintiff's only valid claim under RLUIPA seeking declaratory relief is moot now that he is no longer in Defendants' custody. Accordingly, the Court should dismiss the RLUIPA claims for declaratory and injunctive relief against Defendants in their official capacities for lack of jurisdiction. Warner, 534 F. App'x at 789. The Court should also dismiss with prejudice any other RLUIPAclaim against Defendants in their individual capacities for failure to state a claim. See, e.g., Williams v. Gray, No. CIV-19-820-HE, 2019 WL 8108361, at *5 (W.D. Okla. Oct. 9, 2019) (dismissing with prejudice "a RLUIPA claim [against the defendant] in his individual capacity for monetary damages").

B. ORFA claims.

Without any surviving RLUIPA claim, the Court must decide whether to continue to exercise supplemental jurisdiction under 28 U.S.C. §1367(a) over the ORFA state-law claims....