McIntosh v. United States, 15-CV-2442 (KMK)

CHARLES T. MCINTOSH, Plaintiff, v. UNITED STATES OF AMERICA;MR. HUFFORD, Warden; MR. ZUK, Chaplain;MR. DECKER, FSD; MR. GREEN, FSD;MS. BIANCHI, FS STAFF; 1 to 50 JOHN AND JANE DOES, Defendants.

No. 15-CV-2442 (KMK)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 7, 2018

OPINION & ORDER

Appearances:

Charles T. McIntosh

Janesville, WI

Pro Se Plaintiff

Natasha Waglow Teleanu, Esq.

United States Attorney's Office, Southern District of New York

New York, NY

Counsel for Defendants

KENNETH M. KARAS, District Judge:

Pro se Plaintiff Charles T. McIntoch ("Plaintiff") filed the instant Complaint against the United States of America (the "Government"), Warden Howard Hufford ("Hufford"), Chaplain Richard Zuk ("Zuk"), Food Services Administrator Wayne Decker ("Decker"), Food Services Administrator Jeffry Green ("Green"), Food Services Staff Gina Bianchi ("Bianchi") (collectively "Defendants") alleging violations of his constitutional and statutory rights. Specifically, Plaintiff brings claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging Defendants violated his First, Fifth, Eighth, and Fourteenth Amendment rights; the Federal Tort Claims Act (the "FTCA"), 28 U.S.C. § 2674, et seq.; Sections 1985 and 1986 of the Civil Rights Act, 42 U.S.C. §§ 1985 & 1986; the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. §§ 2000cc-1, et seq.; and the Religious Freedom Restoration Act ("RFRA"), 42 U.S.C. §§ 2000bb, et seq. (See Compl. 2 (Dkt. No. 1).)¹ Before the Court is the Government's Motion To Dismiss the Amended Complaint (the "Motion") on a variety of grounds, pursuant to Federal Rules of Civil Procedure 12(b)(1), 12(b)(5), and 12(b)(6). (See Mot. To Dismiss ("Mot.") (Dkt. No. 38).) For the following reasons, the Government's Motion is granted.

I. Background

A. Factual Background

The following facts are drawn from the Complaint and are taken as true for the purpose of resolving the instant Motion. At the time of the events described herein, Plaintiff was an inmate at FCI - Otisville in Otisville, New York.²

Plaintiff is a member of the Rastafarian faith. (See Compl. ¶ 1.) Plaintiff alleges that Defendants violated his constitutional and statutory rights related to practice of his Rastafarianfaith by preventing him and other Rastafarian inmates from properly observing the "Rastafarian Ceremonial Meal." (See id. ¶¶ 1, 7-10.) The Rastafarian ceremonial meal is "a 'once' per year event" that was scheduled on July 23, 2013. (See id. ¶ 11.)³

On May 14, 2013, Plaintiff filed a grievance against Defendant Zuk regarding the upcoming ceremonial meal and FCI - Otisville's failure to allow the Rastafarians to freely exercise their religious beliefs, including the requirement that observers fast from sun-up to sun-down prior to the meal and the timing for the feast. (See id. ¶ 1.)⁴ According to Plaintiff, the "Chaplain['s] department is required to manage the affairs of all religious faiths." (See id. ¶ 13.) The chaplain, Defendant Zuk, denied Plaintiff's request for certain ritual objects in preparation for the meal, including Rastafarian music, videos, and oils because they were "not religious Rastafarian items." (See id.; see also id. ¶¶ 53-54.) Plaintiff alleges the denial of the request was "retaliation . . . based solely on both 'Stuart' and [Plaintiff's] refusal to withdraw the administrative grievances." (See id. ¶ 55.)⁵ "Most of the Rastafarian community" chose to "boycott[] this most sacread [sic] Holly [sic] event that only comes once a year, because it wasmade clear by the F.C.I. Otisville administration that they inten[d]ed to violate and disrespect the Rastafarian Faith and Practices by forcing us to alter our faith [and] practices." (See id. ¶ 24.)

Plaintiff raises numerous complaints regarding events that occurred at the meal on July 23, 2013. First, Plaintiff alleges he was "denied the right to fast from sun-up to sun-down" before the ceremonial meal. (Id. ¶ 8; see also id. ¶ 10.) It appears the meal took place at 12:30 p.m., rather than after sundown. (See id. ¶ 20 (describing events occurring at 12:30 p.m.).) Plaintiff alleges that Defendants violated RLUIPA because "all other religious faiths, [such] as Jew's and Mus[l]im's" are afforded a fasting period before ceremonial meals. (Id. ¶ 25.) Second, Plaintiff says he "was denied the right to prayer, to give thanks for our blessings, families, childrern [sic] etc., in the proper Rastafarian practices, and beliefs." (Id. ¶ 9.) Specifically, Plaintiff asserts he "was denied the right to bless our ceremonial meal in the proper Rastafarian Religious practices." (Id. ¶ 10.) Third, Plaintiff alleges Defendants permitted "unclean and untouchable" non-Rastafarians to prepare, serve, and participate in the meal in violation of ritual purity laws. (Id. ¶¶ 14, 58.) The Rastafarian faith provides that "anyone who touches or eats the carcass of an unclean animal becomes unclean." (Id. ¶ 14.) Rastafarians consider "pigs/pork" to be "unclean and untouchable." (Id.) Anyone outside the Rastafarian faith that eats and touches "pig/pork" are "forbid[d]en to prepa[re], touch, cook [and] serve [the] religious ceremonial meal," or "participate in any Rastafarian Religious Ceremonial meals, and practices." (Id.) The Food Services Administration would only allow inmates assigned to Food Service to work in the kitchen to prepare the ceremonial meal. (See id. ¶ 4.) As a result, "non-faith members [of] staff made[,] serve[d,] and cooked, [and] prepared" the Rastafarian Ceremonial Meal. (Id. ¶ 21.) In particular, according to Plaintiff, Defendants Hufford, Decker, Green, Bianchi, and Zuk "did knowingly and willingly violate[] the Rastafarian religiousceremonial-meal and religious practices as well as the requirements in having 'unclean-non-faith members' of the Rastafarian laws and religious bele[i]f's and practices." (Id. ¶ 20.) Fourth, Plaintiff alleges that Defendant Bianchi denied the celebrants "a second serving of our Ceremonial meal" and "ordered the non-faith members [of] staff . . . to take the remaining ceremonial meal off the serving line." (Id. ¶ 21.) Thus, "[n]o Rastafarian was able to enjoy or rece[i]ved the privil[e]ge of finishing their ceremonial meal, as we was [sic] made to rush so that the kitchen staff could prepare for the evening meal." (Id. ¶ 22.) According to Plaintiff, the remaining ceremonial meal was served later in the evening as "the Muslims Ramad[a]n meal." (Id. ¶ 23.)

Plaintiff also alleges that the Bureau of Prisons' ("BOP") policy regarding Rastafarianism is flawed in various respects. (See id. ¶¶ 26-28.) For example, the "BOP policy does not state the type of oils used for worship in prayer's," (id. ¶ 26), "[n]or[]does it have the religious items needed for the faith and practices," (id. ¶ 27), and it "does not state[] the number of days that Rastafarians have to fast before the religious ceremonial meal celebrations," (id. ¶ 28).

Finally, Plaintiff alleges that the Defendants are in violation of "the Federal Bureau of Prisons Program Statement OPI:OGC. No. 3420.09 Subject: Standard of Employ[e]e Conduct," specifically, "codes #'s 9-Disrespectful conduct; #28-Preferential treatment of inmates; #35-criminal, dishonest, infamous, and notoriously disgraceful conduct; #36-Conduct which could lead others to question their impartiality; #37-Discrimination in official action against an applicant because of 'race,' 'religion,' sex, 'national origin,' age, handicapping condition, sexual orientation, etc." (Id. ¶ 30.)

As a result of these alleged violations, Plaintiff seeks compensatory damages in the amount of $ 200,000,000.00. (See id. ¶¶ 84-85.)

B. Procedural History

Plaintiff filed the instant Complaint on March 31, 2015. (See Compl. 1.) On November 16, 2016, the Government sought an extension of time to respond to the Complaint, noting that it had been served, but Defendants Hufford, Bianchi, Decker, Zuk, and Greene ("Individual Defendants") had not been properly served. (See Dkt. No. 16.) The Court granted the extension. (See Dkt. No. 18.) On December 9, 2016, the Government requested a premotion conference to file the present Motion. (See Dkt. No. 24.) The Government also informed the Court that Plaintiff had still not properly served the Individual Defendants. (See id.) On December 21, 2016, the Court ordered Plaintiff to "properly serve all defendants by 1/20/2017." (See Dkt. No. 26.)

On January 3, 2017, Plaintiff filed a Motion to Stay All Proceedings, (see Dkt. No. 27), because he "packed 'all legal' documents/cases and mailed home while [waiting] release from federal prison to the halfway house in Wisconsin." (See id.)

Pursuant to a Scheduling Order issued by the Court on September 6, 2017, (see Dkt. No. 37), the Government filed the Motion and accompanying papers on October 10, 2017, (see Dkt. Nos. 38-40). On October 30, 2017, the Government informed the Court that Plaintiff had failed to update his address with the Court and the Motion and accompanying papers could not be served on Plaintiff. (See Dkt. No. 43.) The Government also informed the Court that Plaintiff had failed to properly serve the Individual Defendants. (See id.) On November 1, 2017, pursuant to a memo endorsement, the Court instructed Plaintiff to respond to the letter and that if he did not, the Motion would be decided on the papers submitted. (See Dkt. No. 44.) Plaintiff did not respond.

II. Discussion

A. Standard of Review

"The standards of review for a motion to dismiss under Rule 12(b)(1) for lack of subject matter jurisdiction and under 12(b)(6) for failure to state a claim are 'substantively identical.'" Gonzalez v. Option One Mortg. Corp., No. 12-CV-1470, 2014 WL 2475893, at *2 (D. Conn. June 3, 2014) (quoting Lerner v. Fleet Bank, N.A., 318 F.3d 113, 128 (2d Cir. 2003)); see also Neroni v. Coccoma, No. 13-CV-1340, 2014 WL 2532482, at *4 (N.D.N.Y. June 5, 2014) (same), aff'd, 591 F. App'x 28 (2d...