Shapiro v. Cmty. First Servs., Inc., 11-CV-4061 (KAM)(LB)

CourtUnited States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
Writing for the CourtKIYO A. MATSUMOTO
Docket Number11-CV-4061 (KAM)(LB)
Decision Date27 March 2014

and MISTI MORENO, Defendants.

11-CV-4061 (KAM)(LB)


Dated: March 27, 2014


KIYO A. MATSUMOTO, United States District Judge:

On August 22, 2011, Robert Shapiro ("plaintiff") commenced this action pro se against Jack Brown, Robyn Causey, Lewis Brooks, and Misti Moreno (collectively, "individual defendants") and Community First Services, Inc. ("Community First") pursuant to 42 U.S.C. § 1983 and Bivens v. Six Unknown Names Agents of Federal 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 replead

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his Bivens claims against the individual defendants. (ECF No. 4, Judge 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 seemingly ignored Judge Cogan's Memorandum and Order, and reasserted 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 defendants. (ECF No. 5, Amended Complaint dated 9/13/2011 and filed 9/14/2011 ("Am. Compl.").)1 On January 23, 2012, this case was reassigned to the undersigned.

On March 2, 2012, individual defendants filed a motion to dismiss the remaining Bivens claims in plaintiff's amended complaint for lack of subject matter jurisdiction pursuant to Federal Rule of Civil Procedure 12(b)(1), or, in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56. (ECF No. 34, Defendants' Motion to Dismiss dated 3/2/2012 ("Defs.' Mot.").) Defendants asserted that this court lacked subject matter jurisdiction given that no private

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right of action existed against individual employees of a private halfway house for alleged violations of the First Amendment. (Id.) In the alternative, defendants moved for summary judgment claiming that even if plaintiff had an actionable Bivens claim, he failed to exhaust his administrative remedies as required by the Prison Litigation Reform Act ("PLRA"), 42 U.S.C. § 1997e. (Id.) Both motions were unopposed, despite what appears to be proper service. Nonetheless, this court denied defendants' Rule 12(b)(1) motion to dismiss for lack of subject matter jurisdiction and declined to convert it into a motion for summary judgment under Rule 56. (ECF No. 43, Memorandum and Order dated 3/18/13 ("3/18/13 Mem. & Order") at 7.) This court granted defendants leave to file a renewed motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). (3/18/13 Mem. & Order at 13 n.4.)

Defendants now renew their motion to dismiss pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. (ECF No. 45, Defendants' Motion to Dismiss for Failure to State a Claim dated 4/3/2013 ("Defs.' Renewed Mot.").) This motion is also unopposed, despite apparently proper service on plaintiff. ( See ECF No. 45, Ex. 2, Cert. of Service.) Defendants move to dismiss on grounds that individual defendants are not subject to a Bivens cause of action as employees of private non-profit entity and that plaintiff had

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adequate alternative remedies. (ECF No. 45, Ex. 1, Defendants' Memorandum in Support of Motion to Dismiss dated 4/3/2013 ("Defs.' Mem.") at 1.) For the reasons set forth below, the court grants defendants' Rule 12(b)(6) motion to dismiss plaintiff's amended complaint.


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.) Under contract with the Federal Bureau of Prisons ("BOP"), Community First operates Brooklyn House, a residential reentry center ("RRC" or "halfway house"), which houses federal offenders and United States probation residents preparing for reentry into their respective communities. (See Am. Compl. at 1-2). The individual defendants are all non-government employees of Community First, and three of the individual defendants work at Brooklyn House. (Id. 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. (Id. at 1.) Plaintiff further alleges that Robyn Causey was the Director of Brooklyn House, Lewis Brooks was a supervisor at

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Brooklyn House, and Misti Moreno was plaintiff's case manager at Brooklyn House. (Id. 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 United States v. Shapiro, Docket No. 93-CR-1287, ECF No. 202, Sentencing Judgment for Violation of Supervised Release dated 3/31/11 ("[Defendant] shall serve twelve (12) months in a community confinement center.").) Although plaintiff filed his original complaint while residing at Brooklyn House on August 22, 2011 (see 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 Change of Address 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; ECF No. 36, Plaintiff's Letter dated 6/6/2012.)

II. Alleged Misconduct of the Individual Defendants

During his three-week residence at Brooklyn House, plaintiff claims the individual defendants violated his First Amendment right to freely exercise his religion by failing to allow him sufficient time to attend weekly Quaker services. (Am. Compl. at 2.) While plaintiff acknowledges defendants allowed

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him a time period of three hours to attend services on Sundays, he maintains that this was not enough time to travel to the Quaker meeting house in downtown Brooklyn, attend the religious services, and return to Brooklyn House. (Id.) Plaintiff also asserts that the three-hour limitation on weekly religious services applies only to residents attending "local" religious services. (Id.) Thus, he contends he should not have been subject to the limitation as the Quaker services in downtown Brooklyn were not "local." (Id.)

Plaintiff further alleges that individual defendants "are lying about the 3 hour limitation 'rule.'" (Id.) In support of this claim, plaintiff claims he once received a six-hour pass to attend Jewish services in downtown Brooklyn on August 20, 2011. (Id.) Plaintiff asserts that defendants are "engaging in taradiddles" by allowing him only three hours to attend weekly Quaker services. (Am. Compl. at 2.) In particular, plaintiff alleges that defendant Moreno, his case manager, "was the first person to deny [him] religious services by not allowing [him] any travel time." (Id.) He claims that defendants Causey, Brown, and Brooks subsequently "concurred with Moreno's decision and failed to overrule her decision to deny [p]laintiff the right to attend his religious services." (Id. at 3.) Plaintiff further maintains that he "pleaded with the defendants . . . to no avail." (Id.) To redress the alleged violations of his free

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exercise rights, plaintiff seeks nominal damages of $1 and punitive damages of $10,000,000 from each of the individual defendants. (Id.)


Individual defendants move the court to dismiss plaintiff's Bivens claims pursuant to Rule 12(b)(6) for failure to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). Individual defendants argue that plaintiff cannot bring a Bivens action against employees of a privately operated RRC for alleged violations of the Free Exercise Clause of the First Amendment. (Defs.' Mem. at 6-8.) Further, defendants contend dismissal is warranted because plaintiff has adequate alternative remedies for alleged constitutional violations through the Bureau of Prison's Administrative Remedy Program. (Id. at 8-10.)

For the reasons discussed below, the court finds grounds for dismissal pursuant to Rule 12(b)(6). As such, the court grants defendants' motion to dismiss plaintiff's amended complaint in its entirety, with prejudice.


Pursuant to Rule 12(b)(6), a plaintiff's complaint must be dismissed if it fails to state a claim upon which relief can be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to dismiss, the court must "accept as true all

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allegations in the complaint and draw all reasonable inferences in favor of the non-moving party." Gorman v. Consol. Edison Corp., 488 F.3d 586...

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