Shapiro v. Cmty. First Servs., Inc.

• Decision Date: 18 March 2013
• Docket Number: 11-CV-4061 (KAM)(LB)
• Parties: ROBERT SHAPIRO, Plaintiff, v. COMMUNITY FIRST SERVICES, INC. et al., Defendants.
• Court: U.S. District Court — Eastern District of New York

ROBERT SHAPIRO, Plaintiff,

v.COMMUNITY FIRST SERVICES, INC. et al., Defendants.

11-CV-4061 (KAM)(LB)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: March 18, 2013

NOT FOR PUBLICATION

MEMORANDUM & ORDER

MATSUMOTO, United States District Judge:

On August 22, 2011, pro se plaintiff Robert Shapiro ("plaintiff") commenced this action against Jack Brown, Robyn Causey, Lewis Brooks, and Misti Moreno (collectively, the "individual defendants") and Community First Services, Inc. ("Community First") pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388 (1971) ("Bivens"), alleging violations of his constitutional right to freely exercise his religion under the First Amendment of the United States Constitution. (ECF No. 1, Complaint dated 8/22/2011 ("Compl.").) By Memorandum and Order dated September 8, 2011, Judge Brian Cogan dismissed plaintiff's § 1983 claims against all of the defendants without leave to replead, dismissed plaintiff's Bivens claims against Community First without leave to replead, and granted plaintiff leave to repleadhis Bivens claims against the individual defendants.¹ (See ECF No. 4, Judge Brian Cogan's Memorandum and Order dated 9/8/2011 ("9/8/11 Mem. & Order"), at 3-5.) On September 14, 2011, plaintiff filed an Amended Complaint, in which he improperly re-asserted claims against Community First identical to those in his original Complaint and included additional allegations in support of his § 1983 and Bivens claims against the individual defendants.² (ECF No. 5, Amended Complaint dated 9/13/2011 and filed 9/14/2011 ("Am. Compl.").)

Presently before the court is defendants' unopposed motion to dismiss plaintiff's remaining Bivens claims against the individual defendants for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1) on the ground that no private right of action exists against individual employees of a private halfway house for alleged violations of First Amendment free exercise rights. (ECF No. 34, Defendants' Motion to Dismiss dated 3/2/2012 ("Defs.' Mot.").) In addition, defendants move to dismiss plaintiff'sBivens claims pursuant to Rule 12(b)(1) or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56,³ on the ground that even if the individual defendants are subject to a Bivens claim, plaintiff has failed to exhaust his administrative remedies. (Id.) For the reasons set forth below, the court denies defendants' Rule 12(b)(1) motion to dismiss and declines to exercise its discretion to convert defendants' motion to dismiss into a motion for summary judgment.

FACTUAL BACKGROUND⁴

I. The Parties

Community First is a privately-owned non-profit organization that contracts with local, state, and federal governments to develop and operate community reentry centers, homeless service centers, and affordable housing units. (See 9/8/11 Mem. & Order at 1.) Pursuant to a contract with theFederal Bureau of Prisons ("BOP"), Community First operates Brooklyn House, a residential reentry center ("RRC" or "halfway house"),⁵ which houses federal offenders and United States probation residents preparing for reentry into their respective communities. (See Am. Compl. at 1-2); http://www.cfsnyc.org/ facilities/index.php (last visited 3/18/2013). The individual defendants are all non-government employees of Community First, most of whom work at Brooklyn House. (See Am. Compl. at 1-3.) Specifically, plaintiff alleges that, during his residence at Brooklyn House, defendant Jack Brown was the President and Chief Executive Officer of Community First. (Am. Compl. at 1); http://www.cfsnyc.org/about/jbrown.html (last visited 3/18/2013). Plaintiff further alleges that Robyn Causey was the Director of Brooklyn House, Lewis Brooks was a supervisor at Brooklyn House, and Misti Moreno was plaintiff's case manager at Brooklyn House. (See Am. Compl. at 1-3.)

Plaintiff became a resident of Brooklyn House pursuant to a criminal sentence imposed by United States District Judge Allyne Ross on March 31, 2011. See Sentencing Judgment for Violation of Supervised Release, United States v. Shapiro, No. 93-CR-1287 (E.D.N.Y. Mar. 31, 2011) ("[Defendant] shall serve twelve (12) months in a community confinement center.").Although plaintiff filed his original Complaint during his residence at Brooklyn House on August 22, 2011, (9/8/2011 Mem. & Order at 1), he filed his Amended Complaint on September 14, 2011, subsequent to his departure from Brooklyn House, (see ECF No. 3, Plaintiff's Letter dated 9/7/2011; Am. Compl.). Plaintiff is currently incarcerated at the George R. Vierno Center on Rikers Island. (ECF No. 11, Plaintiff's Notice of Change of Address dated 12/16/2011.)

II. Alleged Misconduct of the Individual Defendants

Plaintiff alleges that during his three-week residence at Brooklyn House, the individual defendants violated his First Amendment free exercise rights by failing to give him enough time to attend his weekly Quaker services.⁶ (Am. Compl. at 2.) Although plaintiff acknowledges that the individual defendants gave him three-hour passes to attend Quaker services on Sundays, he maintains that three hours was not enough time for him totravel to the Quaker meeting house in downtown Brooklyn, attend those religious services, and return to Brooklyn House. (Id.) Plaintiff further asserts that the three-hour limitation on weekly religious services applies only to residents who attend "local" religious services and contends that his Quaker services in downtown Brooklyn are not "local." (Id.)

Plaintiff also claims that the individual defendants "are lying about the 3 hour limitation 'rule.'" (Id.) In support of this claim, plaintiff alleges that he received a six-hour pass to attend Jewish services in downtown Brooklyn on August 20, 2011. (Id.) Plaintiff therefore asserts that the individual defendants are "engaging in taradiddles" by giving him only three hours to attend his weekly Quaker services. (Id.) In particular, plaintiff alleges that Ms. Moreno, his case manager, "was the first person to deny [him] religious services by not allowing [him] any travel time," and alleges that Ms. Causey, Mr. Brown, and Mr. Brooks subsequently "concurred with [Ms.] Moreno's decision and failed to overrule her decision to deny [p]laintiff the right to attend his religious services." (Id. at 2-3.) Finally, plaintiff maintains that he "pleaded with the defendants . . . to no avail." (Id. at 3.) To redress the alleged violations of his constitutional free exercise rights, plaintiff seeks nominal damages of $1 and punitivedamages of $10,000,000 from each of the individual defendants. (Id.)

DISCUSSION

Defendants urge the court to dismiss plaintiff's Bivens claims on two independent jurisdictional grounds. First, defendants argue pursuant to Fed. R. Civ. P. 12(b)(1) that the court lacks subject matter jurisdiction over plaintiff's claims because a Bivens action is unavailable against employees of a privately operated RRC for alleged violations of the Free Exercise Clause of the First Amendment. (See ECF No. 34, Exh. 1, Defendants' Memorandum of Law in Support of Motion to Dismiss ("Defs.' Mem.") at 9-12.) Second, in their Rule 12(b)(1) motion to dismiss or, in the alternative, for summary judgment, defendants contend that dismissal is also warranted because plaintiff failed to exhaust his administrative remedies as required under the Prison Litigation Reform Act of 1995 ("PLRA"), 42 U.S.C. § 1997e. (Id. at 12-16.)

For the reasons set forth below, the court finds that defendants have erroneously invoked Rule 12(b)(1) in the instant motion because neither basis for dismissal offered by defendants is jurisdictional. As such, the court denies defendants' Rule 12(b)(1) motion to dismiss and, in an abundance of caution, declines to convert defendants' motion to dismiss into a motion for summary judgment.

I. The Availability of a Bivens Remedy

Defendants first move to dismiss plaintiff's Bivens claims for lack of subject matter jurisdiction pursuant to Rule 12(b)(1), arguing that plaintiff cannot maintain a Bivens action against employees of a privately operated halfway house for alleged violations of his free exercise rights under the First Amendment. (Id. at 9-12.) Defendants broadly assert that "where a plaintiff has attempted to assert a Bivens claim against an improper defendant, the plaintiff's action should be dismissed under Rule 12(b)(1)." (Id. at 9.) The court, however, finds that defendants have mistakenly invoked Rule 12(b)(1) in urging the court to reject the extension of an implied Bivens remedy against the individual defendants and therefore denies defendants' Rule 12(b)(1) motion. This result is warranted for two reasons.

First, courts declining to recognize an implied Bivens remedy against employees of privately operated correctional facilities have routinely dismissed such Bivens claims for failure to state a claim upon which relief can be granted, rather than for lack of subject matter jurisdiction pursuant to Rule 12(b)(1). See, e.g., Minneci v. Pollard, 132 S. Ct. 617, 620 (2012); Alba v. Montford, 517 F.3d 1249, 1251, 1256 (11th Cir. 2008) (holding that plaintiff failed to state a claim upon which relief can be granted because Bivens remedy wasunavailable against private prison employees), cert. denied, 129 S. Ct. 632 (2008); Holly v. Scott, 434 F.3d 287, 291 (4th Cir. 2006) (affirming the district court's dismissal of plaintiff's Bivens claims against private prison employees under Rule 12(b)(6)), cert. denied, 126 S. Ct. 2333 (2006); Brooks v. Sposato, No. 11-CV-2598, 2012 WL 6756944, at *6 (E.D.N.Y. Nov. 26, 2012) ("[I]t appears that plaintiff's Bivens claims against the QPDF defendants would be subject to dismissal under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim in light of Minecci [sic]."), adopted by 2013 WL 29964 (E.D.N.Y. Jan. 2, 2013); cf. Corr....