Simpson v. Federal Bureau of Prison

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
JESSE RUSSELL SIMPSON,
Plaintiff,
v. Civil Action No. 1:19-cv-03173 (CJN)
FEDERAL BUREAU OF PRISONS, et al.,
Defendants.
MEMORANDUM OPINION
Jesse Russell Simpson seeks equitable relief and damages for Defendants’ alleged
violations of his religious civil rights occurring while he has been incarcerated at several federal
prison facilities. See generally Compl., ECF No. 1. Simpson alleges that he practices Orthodox
Therian Shamanism—a religion that requires him to “wear an imitation [w]olf tail” at all times
and “meditate regularly around imagery of [w]olves,” id. at 4—and that Defendants violated his
right to freely practice the religion, id. at 2–3. Simpson asserts various claims against the Bureau
of Prisons and twenty-two individual defendants, in both their official and individual capacities,
for the alleged violations.
For the reasons that follow, the Court will dismiss certain of the official-capacity claims,
transfer others to the Western District of Pennsylvania, and retain certain of the individual-
capacity claims.
I. Background
Simpson is a prisoner currently incarcerated at Federal Correctional Institution (“FCI”)
Loretto in Pennsylvania. See id. at 9–10. Prior to being transferred to FCI Loretto, Simpson was
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housed at FCI Danbury in Connecticut, transferred to FCI Morgantown in West Virginia, and
temporarily held at Federal Transfer Center (“FTC”) Oklahoma City in Oklahoma and U.S.
Penitentiary (“USP”) Canaan in Pennsylvania. See id. at 4–10.
On October 21, 2019, Simpson filed this lawsuit alleging past and ongoing violations of
his religious civil rights under the First Amendment and the Equal Protection Clause of the
Constitution, the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to
2000bb-4 (2018), the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), id.
§§ 2000cc to 2000cc5, and Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). See generally Compl. Simpson claims to practice Orthodox
Therian Shamanism, a religion “with similar beliefs to many Native American and Animism
religions.” Id. at 4. He asserts that, to comply with the tenets of this religion, he must “wear an
imitation [w]olf tail” at all times and “meditate regularly around imagery of [w]olves.” Id.
According to Simpson, failing to practice his religion in this way subjects him to “punishment of
eternal damnation.” Id.
Simpson sues twenty-three federal Defendants, including the Bureau of Prisons and
various federal employees in both their individual and official capacities1 for preventing him
from practicing Orthodox Therian Shamanism while incarcerated. See id. The same day he filed
his Complaint, Simpson moved for either a temporary restraining order (TRO) or a preliminary
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Simpson sues the following federal employees in both their official and individual capacities:
(1) Warden V. Moser; (2) Chaplain Lesh; (3) Chaplain Stadtler; (4) Captain Waughen;
(5) Warden of Oklahoma City FTC; (6) Chaplain(s) of Oklahoma City FTC; (7) Warden C.
Gomez; (8) Captain Fullen; (9) Unit Manager Tejera; (10) Counselor B. Plavi; (11) Case
Manager Barkaszi; (12) Case Manager E. Dodrill; (13) Officer Dulla; (14) Officer Rudy;
(15) Regional Director D.J. Harmon; (16) Chaplain Brian Price; (17) Warden of Canaan USP;
(18) Chaplain of Canaan USP; (19) Associate Warden M. Wolever; (20) Facilities Supervisor
Gialon; (21) Ian Connors; and (22) the Federal Bureau of Prisons General Counsel.
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injunction permitting him “to purchase, make, or otherwise obtain an imitation [w]olf tail,”
permitting him “to possess books, imagery, and other literature featuring [w]olves,” and
preventing Defendants from harassing, intimidating, retaliating, or otherwise targeting him as a
result of this lawsuit. Mot. for TRO & Prelim. Inj. at 1, ECF No. 2.
Shortly after Simpson moved for the preliminary equitable relief, the U.S. Attorney’s
Office of the District of Columbia appeared on behalf of the Bureau of Prisons (“BOP”) and the
federal employees with respect to the official-capacity claims asserted against them (the
“Official-Capacity Claims”). Notice of Appearance, ECF No. 3. Service has not yet been
effected with respect to the individual-capacity claims against the individual defendants (the
“Individual-Capacity Claims”). See Simpkins v. D.C. Gov’t, 108 F.3d 366, 369 (D.C. Cir. 1997)
(adopting the rule that “defendants in Bivens actions must be served as individuals, pursuant to
Rule 4(e)”).2 In other words, the claims against BOP and the Official-Capacity Claims are the
only claims properly before the Court at this time.
On November 19, 2019, Defendants filed their opposition to Simpson’s request for
preliminary equitable relief in which they move to dismiss, or alternatively, for summary
judgment on Simpson’s claims. Mem. in Supp. of Opp’n to Mot. for TRO & Defs.’ Mot. to
Dismiss, or Alt., for Summ. J., or Alt. to Transfer (“Defs.’ Opp’n & Mot.”), ECF No. 7-1.
Simpson’s and the Defendants’ Motions are now ripe. See Mot. for TRO & Prelim. Inj.; Defs.’
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For the reasons stated in Simpkins, the Court applies Rule 4(e) to all of Simpson’s Individual-
Capacity Claims. See 108 F.3d at 369 (requiring defendants in Bivens actions to be served as
individuals because Bivens claims against federal officials in their individual capacities “cannot
be viewed as actions against the government” as they impose personal liability on the federal
official and because Bivens defendants, under Department of Justice procedures, “have to
shoulder the burden of requesting, in writing, that the government provide representation or, in
case of a conflict of interest, pay for private counsel”).
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Opp’n & Mot.; Mem. in Supp. of Pl.’s Mot & Reply to Def.’s Resp. (“Pl.’s Reply”), ECF
No. 13-2; Reply in Supp. of Mot. to Diss, or, Alt., for Summ. J., or Alt., to Transfer, ECF No. 15.
II. Analysis
Simpson seeks both damages and equitable relief under the Constitution, RLUIPA,
RFRA, and Bivens. Mot. for TRO & Prelim. Inj. at 1–4 (seeking a TRO and a preliminary
injunction); Compl. at 97–98 (seeking compensatory damages, punitive damages, declaratory
judgment, and a permanent injunction). Defendants move to dismiss the claims that are
presently before the Court, either under Federal Rule of Civil Procedure 12(b)(1) because the
claims are moot or Defendants have immunity from suit, under Rule 12(b)(6) because Simpson
fails to state a claim, or under Rule 12(b)(3) because venue is improper. See generally Defs.’
Opp’n & Mot.
A. RLUIPA Claims
Simpson cannot maintain RLUIPA claims against any of the Defendants. RLUIPA “does
not create a cause of action against the federal government or its correctional facilities.” Jackson
v. Fed. Bureau of Prisons, No. 06-592, 2006 WL 2434938, at *3 (D.D.C. Aug. 22, 2006) (first
citing Ish Yerushalayim v. U.S. Dep’t of Corr., 374 F.3d 89, 92 (2d Cir. 2004)); then citing
Sample v. Lappin, 424 F. Supp. 2d. 187, 192 n.3 (D.D.C. 2006); other citations omitted).
Simpson’s RLUIPA claims—including the Individual-Capacity and Official-Capacity RLUIPA
Claims— are therefore dismissed against all Defendants for failure to state a claim.
B. Simpson’s Damages Claims
1. Simpson’s RFRA Damages Claims
Simpson seeks damages under RFRA. But “RFRA does not waive the federal
government’s sovereign immunity for damages.” Webman v. Fed. Bureau of Prisons, 441 F.3d
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1022, 1026 (D.C. Cir. 2006). The BOP and federal employees in their official capacities are
therefore immune from Simpson’s damages claims under RFRA.3
2. Simpson’s Constitutional Damages Claims
Simpson also seeks damages for alleged violations of his constitutional rights under the
First Amendment and Equal Protection Clause. Compl. at 18–27. Again, however, “[s]overeign
immunity . . . bar[s] suits for money damages against officials in their official capacity absent a
specific waiver by the government.” Clark v. Library of Cong., 750 F.2d 89, 103 (D.C. Cir.
1984) (citations omitted). Simpson does not point to a specific waiver for damages for his
alleged constitutional injuries, see Pl.’s Reply at 12, and the Court is not aware of one. As a
result, the BOP and federal employees in their official capacities are immune from Simpson’s
constitutional damages claims.4
In sum, none of Simpson’s claims for damages presently before the Court—those against
the BOP and the Official-Capacity Claims—survive.
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The Court notes that Simpson’s Individual-Capacity Claims under RFRA present a more
complex question. The D.C. Circuit has not addressed whether RFRA permits damages actions
against federal officers sued in their individual capacities. At least two Circuit Courts of Appeals
have held that such suits are permitted. Tanvir v. Tanzin, 894 F.3d 449, 462 (2d Cir. 2018)
(“[W]e hold that RFRA . . . authorizes a plaintiff to bring individual capacity claims against
federal officials or other ‘person[s] acting under color of [federal] law.’”); Mack v. Warden
Loretto FCI, 839 F.3d 286, 304 (3d Cir. 2016) (“[W]e conclude that federal officers who violate
RFRA may be sued in their individual capacity for damages.”). Recently, the Supreme Court
granted certiorari on this question. Tanzin v. Tanvir, No. 19-71, 2019 WL 6222538, at *1 (U.S.
Nov. 22, 2019). These Individual-Capacity RFRA Claims, however, are not properly before the
Court until Simpson serves Defendants in their individual capacities.
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Simpson’s Individual-Capacity Claims seeking damages for constitutional violations under
Bivens are not properly before the Court until Simpson effects service on the individual
Defendants.
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C. Simpson’s Equitable Relief Claims
Simpson also seeks preliminary and permanent equitable relief from alleged violations of
RFRA, the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause.
Mot. for TRO & Prelim. Inj. at 1–4; Compl. at 97–98. Because such relief would run against the
BOP and the individual Defendants in the performance of their official duties, the Court
construes Simpson’s request for equitable relief as presenting claims only against the individual
defendants in their official capacities (in addition to BOP). See BEG Invs., LLC v. Alberti, 34
F. Supp. 3d 68, 80 (D.D.C. 2014) (“Courts have concluded that there is no basis for suing a
government official for declaratory and injunctive relief in his or her individual or personal
capacity.” (citations and internal quotation marks omitted)); Hatfill v. Gonzales, 519 F. Supp. 2d
13, 26 (D.D.C. 2007) (“[O]nly by acting as a government official (not as an individual acting
personally), can a public official’s compliance with a court decree remedy the governmental
action, policy[,] or practice that is being challenged.”); see also Feit v. Ward, 886 F.2d 848, 858
(7th Cir. 1989) (“The policy [the plaintiff] challenges, however, is that of the Forest Service and
is carried out by the defendants in their capacities as supervisory Forest Service employees, i.e.,
in their official capacities. Moreover, the equitable relief Feit requests—a declaration that the
policy is unconstitutional and an injunction barring the defendants from implementing the policy
in the future—can be obtained only from the defendants in their official capacities, not as private
individuals.” (citation omitted)).
Here, Simpson seeks equitable relief for alleged violations of his religious rights by the
BOP generally and by certain officials at five BOP facilities and offices relating to the specific
conditions of his confinement. See, e.g., Mot. for TRO & Prelim. Inj. at 1–4; Compl. at 1–3,
97–98. But “[n]ormally, a prisoner’s transfer or release from a prison moots any claim he might
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have for equitable relief arising out of the conditions of his confinement in that prison.” Scott v.
District of Columbia, 139 F.3d 940, 941 (D.C. Cir. 1998) (footnote omitted). Simpson was
recently transferred to FCI Loretto, and thus BOP and those Defendants working at FCI Loretto
and BOP Headquarters are now responsible for the conditions of his confinement. See Compl. at
9–10. Simpson’s Official-Capacity Claims for equitable relief against the individual Defendants
working at FTC Oklahoma, FCI Morgantown (and the related BOP Mid-Atlantic Regional
Office), and USP Canaan are therefore moot. See Reid v. Hurwitz, 920 F.3d 828, 832 (D.C. Cir.
2019) (“Under the mootness doctrine, we cannot decide a case if ‘events have so transpired that
the decision will neither presently affect the parties’ rights nor have a more-than-speculative
chance of affecting them in the future.’” (quoting Clarke v. United States, 915 F.2d 699, 701
(D.C. Cir. 1990) (en banc))).5 Simpson’s claims against the BOP (which sets BOP general
policy) and Official-Capacity Claims against individual Defendants working at FCI Loretto
(where he is currently confined) and at BOP Headquarters (who set BOP general policy)
survive.6
D. Improper Venue
Defendants also argue that venue in the District of Columbia is improper. They ask the
Court either to dismiss the claims on this ground under Federal Rule 12(b)(3) or, in the
alternative, to transfer the claims under 28 U.S.C. § 1404(a) to the Western District of
5
Simpson does not argue that the voluntary cessation or capable of repetition, yet evading
review exceptions to mootness apply here. See Reid, 920 F.3d at 832–34 (capable of repetition,
yet evading review); Aref v. Lynch, 833 F.3d 242, 250–51 (D.C. Cir. 2016) (voluntary cessation).
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These Defendants are: (1) the BOP; (2) Warden V. Moser; (3) Chaplain Lesh; (4) Chaplain
Stadler; (5) Captain Waughen; (6) Ian Connors; and (7) BOP General Counsel.
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Pennsylvania, the location of Simpson’s current place of incarceration, FCI Loretto. See Defs.’
Opp’n & Mot. at 19–20.
Because only claims against the BOP and the Official-Capacity Claims are currently
before the Court, the applicable venue statute is 28 U.S.C. § 1391(e). See Cameron v.
Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993) (emphasizing that § 1391(e) applies to prison
officials sued in their official capacities). That provision provides:
A civil action in which a defendant is an officer or employee of the
United States or any agency thereof acting in his official capacity
. . . may . . . be brought in any judicial district in which (A) a
defendant in the action resides, (B) a substantial part of the events
or omissions giving rise to the claim occurred . . . or (C) the plaintiff
resides if no real property is involved in the action.
§ 1391(e)(1). Venue is proper in this district because three Defendants against whom Official-
Capacity Claims are asserted reside here. See § 1391(e)(1)(A).
But that does not mean this is the appropriate forum for this dispute. Because a plaintiff
can manufacture venue in this District by naming high government officials and entities as
defendants, “[c]ourts in this circuit must examine challenges to . . . venue carefully.” Cameron,
983 F.2d at 256. The Court may therefore transfer suits involving federal prisoners under
28 U.S.C. § 1404(a) after considering where the prisoner is incarcerated, the location of relevant
records and witnesses, and other related convenience factors. See, e.g., Pinson v. U.S. Dep’t of
Justice, 74 F. Supp. 3d 283, 293 (D.D.C. 2014); Galindo v. Gonzales, 550 F. Supp. 2d 115, 117
(D.D.C. 2008) (“There is no question that this case ‘might have been brought’ in the Eastern
District of Texas (where the alleged injury . . . occurred) or in the Western District of Texas
(where plaintiff is now incarcerated and where, according to plaintiff, the conspiracy to deprive
him of medical treatment continued following his transfer to the La Tuna Facility.” (citation
omitted)).
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Here, all of Simpson’s presently remaining claims seek equitable relief regarding his
current conditions at FCI Loretto—the facility where he is currently incarcerated, where records
and witnesses involving his current treatment are located, and where the acts and omissions he
seeks to enjoin are allegedly occurring. See generally Compl. As a result, his surviving claims
are more appropriately litigated in the Western District of Pennsylvania, the district in which FCI
Loretto is located. See, e.g., Pinson, 74 F. Supp. 3d at 293–94 (transferring an incarcerated
plaintiff’s claims for equitable relief from the District of Columbia to the District of Colorado
under § 1404(a) because the plaintiff was incarcerated in Colorado and a large portion of the
records and witnesses were located there).
III. Conclusion
For the foregoing reasons, Simpson’s RLUIPA claims against all Defendants are
DISMISSED, his claims for damages against the BOP and Official-Capacity claims for damages
against the individual Defendants under RFRA and the Constitution are DISMISSED, and his
claims for equitable relief against the individual Defendants working at FTC Oklahoma, FCI
Morgantown (and the BOP Mid-Atlantic Regional Office), and USP Canaan are DISMISSED.
Simpson’s claims for equitable relief against the BOP and individual Defendants at FCI Loretto
and BOP Headquarters are TRANSFERRED to the Western District of Pennsylvania. Finally,
Simpson’s Individual-Capacity Bivens and RFRA claims remain before this Court. An order will
be entered contemporaneously with this Memorandum Opinion.
DATE: January 8, 2020
CARL J. NICHOLS
United States District Judge
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