Opinion
CASE NO. 18-CV-61392-ALTONAGA
July 13, 2018, Decided. July 13, 2018, Entered on Docket
Bradley Dorman, Plaintiff, Pro se, Fort Lauderdale, FL.
REPORT OF MAGISTRATE JUDGE
I. Introduction
Bradley Dorman has filed a pro se civil rights complaint pursuant to 42 U.S.C. §1983, alleging that in April of 2018 while housed at Broward County Mail Jail ("BCMJ") he was denied the opportunity to participate in the Passover diet and services by the Broward Sheriff's Office ("BSO") Chaplains Richard Aronofsky and Capri Jordan. (DE#1). He has previously filed a motion to proceed in forma pauperis ("IFP"), which was granted by court order without requiring that plaintiff prepay the filing fee, but establishing a $350.00 debt. (DE#3,5).
Because plaintiff is a prisoner seeking redress against governmental entities, employees, or officers, his complaint is subject to screening under 28 U.S.C. §1915A, which does not distinguish between IFP plaintiffs and non-IFP plaintiffs. See 28 U.S.C. §1915A; Thompson v. Hicks, 213 Fed.Appx. 939, 942 (11th Cir. 2007)( per curiam).
Moreover, pleadings drafted by pro se litigants must be liberally construed, Haines v. Kerner, 404 U.S. 519, 520-21, 92 S.Ct. 594, 30 L.Ed.2d 652 (1972)( per curiam), but the Court may review plaintiff's complaint and dismiss the complaint, or any part thereof, if it is frivolous, malicious, or fails to state a claim upon which relief can be granted. See 28 U.S.C. §1915A.
This Cause is presently before the Court for initial screening of the complaint (DE# 1) pursuant to 28 U.S.C. §1915, because the plaintiff is proceeding in forma pauperis.
II. Standard of Review
The Prison Litigation Reform Act ("PLRA") requires that the court review "as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officers or employee of a governmental entity." 28 U.S.C. §1915A(a). On review, the district court is required to "identify cognizable claim or dismiss the complaint, or any portion of the complaint," if it "is frivolous, malicious, or fails to state a claim upon which relief can be granted; or, seeks monetary relief against a defendant who is immune from such relief. See 28 U.S.C. §1915A(b)(1), (b)(2).
In essence, §1915A is a screening process to be applied sua sponte and at any time during the proceedings. In reviewing the complaint, the court views all allegations as true. Brown v. Johnson, 387 F.3d 1344, 1347 (11th Cir. 2004). Complaints that lack any arguable basis in law or fact, nonetheless, may be dismissed. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989); Bilal v. Driver, 251 F.3d 1346, 1349 (11 Cir.), cert. denied, 534 U.S. 1044, 122 S. Ct. 624, 151 L. Ed. 2d 545 (2001). Dismissals on this ground should only be ordered when the legal theories are "indisputably meritless," Neitzke, 490 U.S. at 327; when the claims rely on factual allegations that are "clearly baseless," Denton v. Hernandez, 504 U.S. 25, 31, 112 S. Ct. 1728, 118 L. Ed. 2d 340 (1992); or, when it appears that the plaintiff has little or no chance of success. Bilal, 251 F.3d at 1349.
Dismissals for failure to state a claim are governed by the same standard as Fed.R.Civ.P. 12(b)(6). Mitchell v. Farcass, 112 F.3d 1483, 1490 (11th Cir. 1997)("The language of section 1915(e)(2)(B)(ii) tracks the language of Fed.R.Civ.P. 12(b)(6)"). Thus, a court may dismiss a complaint if the facts as pleaded do not state a claim for relief that is plausible on its face. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 560-61, 127 S.Ct. 1955, 1968-69, 167 L.Ed.2d 929 (2007)(abrogating Conley v. Gibson, 355 U.S. 41, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). Additionally, the court may dismiss a case when the allegations in the complaint on their face demonstrate that an affirmative defense bars recovery of the claim. Marsh v. Butler County, Ala., 268 F.3d 1014, 1022 (11th Cir.2001).
In order to state a §1983 claim, a plaintiff must demonstrate that (1) the defendant(s) deprived plaintiff of a right secured under the Constitution or federal law, and (2) that such a deprivation occurred under color of state law. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)(quoting Arrington v. Cobb County, 139 F.3d 865, 872 (11th Cir. 1998).
Pro se complaints are held to "less stringent standards than formal pleadings drafted by lawyers and can only be dismissed for failure to state a claim if it appears 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Estelle v. Gamble, 429 U.S. 97, 106, 97 S. Ct. 285, 50 L. Ed. 2d 251 (1979)(quoting Haines v. Kerner, 404 U.S. 519, 520-21, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972)). The allegations of the complaint are taken as true and are construed in the light most favorable to Plaintiff. Davis v. Monroe County Bd. Of Educ., 120 F.3d 1390, 1393 (11 Cir. 1997).
To determine whether a complaint fails to state a claim upon which relief can be granted, the Court must engage in a two-step inquiry. First, the Court must identify the allegations in the complaint that are not entitled to the assumption of truth. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007)). These include "legal conclusions" and "[t]hreadbare recitals of the elements of a cause of action [that are] supported by mere conclusory statements." Second, the Court must determine whether the complaint states a plausible claim for relief. Id. This is a "context-specific task that requires the reviewing court to draw on its judicial experience and common sense." The plaintiff is required to plead facts that show more than the "mere possibility of misconduct." The Court must review the factual allegations in the complaint "to determine if they plausibly suggest an entitlement to relief." When faced with alternative explanations for the alleged misconduct, the Court may exercise its judgment in determining whether plaintiff's proffered conclusion is the most plausible or whether it is more likely that no misconduct occurred.
The application of the Twombly standard was clarified in Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).
III. Facts Set Forth in the Complaint
Plaintiff lists the following named Defendants: Richard Aronofsky and Capri Jordan of the BSO Chaplain's Office. (DE# 1:1).
The following facts are taken from the Plaintiff's complaint (DE#1) and exhibits he attached to his motion to proceed in forma pauperis (DE# 3:3-8). Passover took place from April 10, 2017 through April 18, 2017 and from March 30, 2018 through April 7, 2018. Plaintiff is a practicing Jew and Passover is "a central tenet of the Jewish faith." (DE# 1:5).
On April 3, 2017, Plaintiff sent a message to the BSO Chaplain's office and was successfully added to participate in the Passover service and diet plan. (DE# 1:3; DE# 3:6-7, Case No. 835327). In 2017, he had attempted to sign up on March 6, 2017, and Defendant Capri Jordan responded, "Passover isn't until April." (DE# 1:3; DE# 3:6, Case No. 823271).
On April 1, 2018, Plaintiff used the computer kiosk to send a message to the Chaplain's Office that he was signing up for the Passover diet and the related religious services. (DE# 1:2; DE# 3:3, Case No. 989204). On April 2, 2018, Jordan replied that the deadline to sign up was February 14, 2018. (Id.). On April 4, 2018, Plaintiff sent another message stating, "I signed up last year for Passover the first week of April, when did the policy change? I would assume I would be notified of any changes." (DE# 1:3; DE# 3:4, Case No. 990372). On April 4, 2018, Jordan replied: "It was posted on the kiosk that the deadline to sign up to participate in Passover was February 14." (Id.).
On April 6, 2018, Plaintiff filed a grievance with the Chaplain's Office. (DE# 1:3; DE# 3:5, Case No. 991399). Defendant Aronofsky responded stating "Per the Chaplain's Office: 'unfounded, the notice posted in the kiosk for all inmates. At this time, Passover is over.'" (Id.). According to Plaintiff, no such notice was posted in the "Kosher holiday menu section." (DE#1:4).
Plaintiff seeks $100,000 in compensatory damages against both defendants and $100,000 in punitive damages against Defendant Jordan alone. He also seeks declaratory and injunctive relief. He requests a jury trial, costs/fees, and any other relief this court deems necessary. (Id.:6).
IV. Discussion
A complaint is subject to dismissal for failure to state a claim if the allegations, taken as true, show the plaintiff is not entitled to relief. Jones v. Bock, 549 U.S. 199, 215, 127 S. Ct. 910, 920, 166 L. Ed. 2d 798 (2007). "Section 1983 creates no substantive rights; it merely provides a remedy for deprivations of federal statutory and constitutional rights." Almand v. DeKalb County, Ga., 103 F.3d 1510, 1512 (11th Cir. 1997)(citation omitted). Further, §1983 is not meant to replace state tort law, it is only meant to provide a remedy for violations of federally protected rights. Id. at 1513 (citing Baker v. McCollan, 443 U.S. 137, 145-146, 99 S.Ct. 2689, 2695, 61 L.Ed.2d 433 (1979)).
A successful §1983 imposes liability on anyone who, under color of state law, deprives a person of any rights, privileges, or immunities secured by the Constitution and laws. See Bingham v. Thomas, 654 F.3d 1171, 1175 (11th Cir. 2011)(per curiam)(citation omitted); Richardson v. Johnson, 598 F.3d 734, 737 (11th Cir. 2010)(per curiam)(citations omitted). Moreover, the Eleventh Circuit "'requires proof of an affirmative causal connection between the official's acts or omissions and the alleged constitutional deprivation' in §1983 cases." Rodriguez v. Sec'y for the Dep't of Corr., 508 F.3d 611, 625 (11th Cir. 2007)( quoting Zatler v. Wainwright, 802 F.2d 397, 401 (11th Cir. 1986)). More than conclusory and vague allegations are required to state a cause of action under 42 U.S.C. §1983. See L.S.T., Inc. v. Crow, 49 F.3d 679, 684 (11th Cir. 1995)(per curiam); Fullman v. Graddick, 739 F.2d 553, 556-57 (11th Cir. 1984). In the absence of a federal constitutional deprivation or violation of a federal right, Plaintiff cannot sustain a cause of action against the Defendants under 42 U.S.C. §1983.
As applied here, the Eleventh Circuit has provided guidance in the religious context, stating that for the claims alleged herein, the Plaintiff must allege three elements: "(1) he suffered a violation of his constitutional rights; (2) the act or omission that caused the constitutional deprivation was committed by a person acting under color of law; and (3) the constitutional deprivation resulted from a custom, policy, or practice of the municipality or equivalent entitle (here the BCJ)." See Wilkinson v. Sec'y, Fla. Dep't of Corr's, 622 Fed.Appx. 805 (11th Cir. 2015)( quoting Wideman v. Shallowford Cmty. Hosp., Inc., 826 F.2d 1030, 1032 (11th Cir. 1987)).
Construing Plaintiff's arguments liberally as afforded pro se litigants under Haines v. Kerner, 404 U.S. 519, 92 S. Ct. 594, 30 L. Ed. 2d 652 (1972), it appears Plaintiff is suing the three named Defendants for violating his right to practice his religious beliefs by denying his request for his religious materials.
A. First Amendment Claim
The gist of Plaintiff's allegations appears to be that his First Amendment rights have been violated by the two named Defendants who prevented him from exercising his religious beliefs during Passover in 2018. The First Amendment to the United States Constitution provides:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or of the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Const. Amend. I. Although, "prisoners do not shed all constitutional rights at the prison gate, ... [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights." Sandin v. Conner, 515 U.S. 472, 485, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995)(citation and quotations omitted).
The First Amendment's Free Exercise Clause is applicable to the states through the Fourteenth Amendment. See Cantwell v. Connecticut, 310 U.S. 296, 303, 60 S.Ct. 900, 84 L.Ed. 1213 (1940).
Under the Constitution, "reasonable opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the First and Fourteenth Amendments." Cruz v. Beto, 405 U.S. 319, 322 n.2, 92 S.Ct. 1079, 31 L.Ed.2d 263 (1972). To state a valid First Amendment claim, it must be determined whether the plaintiff is sincere in his religious beliefs, and whether the regulation impinging on the free exercise of his religion is reasonably related to legitimate penological interests. Turner v Safley, 482 U.S. 78, 107 S. Ct. 2254, 96 L. Ed. 2d 64 (1987), O'Lone v. Estate of Shabazz, 482 U.S. 342, 107 S. Ct. 2400, 96 L. Ed. 2d 282 (1987).
Further, a prisoner must show that his ability to practice his faith was substantially burdened. See Turner v. Safley, 482 U.S. 78, 85, 107 S.Ct. 2254, 96 L.Ed.2d 64 (1987); Cheffer v. Reno, 55 F.3d 1517, 1522 (11th Cir. 1995). The Eleventh Circuit has defined a "substantial burden" as a burden that either compels a person to engage in conduct that is forbidden by his religion, or conduct that prohibits a person from engaging in conduct required by his religion. Cheffer, 55 F.3d at 1522. Governmental interference must be more than an inconvenience; the burden must be substantial and significantly interfere with Plaintiff's practice of his religious beliefs. See Thornburgh v. Abbott, 490 U.S. 401, 418, 109 S.Ct. 1874, 1884, 104 L.Ed.2d 459 (1989)(noting that O'Lone v. Estate of Shabazz, 482 U.S. 342, 345, 107 S.Ct. 2400, 2402, 96 L.Ed.2d 282 (1987) found prison regulations valid in part because the prisoners were permitted to participate in other Muslim religious ceremonies).
Although "prisoners do not shed all constitutional rights at the prison gate, ... [l]awful incarceration brings about the necessary withdrawal or limitation of many privileges and rights." Sandin v. Conner, 515 U.S. 472, 485, 115 S. Ct. 2293, 132 L. Ed. 2d 418 (1995) (citation and quotations omitted). Despite their incarceration, inmates must be afforded a "reasonable opportunity" to exercise their religious freedom. Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 31 L. Ed. 2d 263 (1972).
The Plaintiff has alleged that the Defendants' actions deprived him of a reasonable opportunity to exercise his religious freedom. He asked to observe Passover on the first day of Passover, it is unclear why he could not participate in the diet and services at that time. Passover is an important aspect of the Jewish religion. Therefore, to the extent he intended to make a First Amendment claim, at this juncture, he has provided sufficient facts to proceed.
B. RLUIPA Claim
Alternatively, Plaintiff attempts to make a claim under the Religious Land Use and Institutionalized Persons Act ("RLUIPA") and the Religious Freedom Restoration Act, the predecessor to RLUIPA. Plaintiff appears to suggest that the named Defendants are enforcing a BCJ policy that prevents inmates from exercising their religious beliefs. See e.g. Wilkinson v. Sec'y, Fla. Dep't of Corr's, 622 Fed.Appx. at 812 ( citing Rich v. Sec'y, Fla. Dep't of Corr's, 716 F.3d 525 (11 Cir. 2013)(recognizing RLUIPA claim against the FDOC based on a policy that substantially burdened an inmate's free exercise of religion)).
RLUIPA expressly provides for a private right of action for individuals whose religious exercise is unlawfully burdened while incarcerated in prison. See 42 U.S.C. §2000cc-2; Gardner v. Riska, 444 Fed.Appx. 353, 355 (11th Cir. 2011)("RLUIPA creates an express private cause of action for injunctive and declaratory relief against the government, which includes 'States, counties, municipalities, their instruments and officers, and persons acting under color of state law.'" ( quoting Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011)). Accordingly, "[a] person may assert a violation of this chapter as a claim or defense in a judicial proceeding and obtain appropriate relief against a government." Id. §2000cc-2(a).
Section 3(a) of the Religious Land Use and Institutionalized Persons Act of 2000 ("RLUIPA") provides that "[n]o government shall impose a substantial burden on the religious exercise" of an institutionalized person unless the government demonstrates that the burden "is the least restrictive means of furthering [a] compelling governmental interest." 42 U.S.C. §2000cc-1(a). It "protects institutionalized persons who are unable freely to attend to their religious needs and are therefore dependent on the government's permission and accommodation for exercise of their religion." Cutter v. Wilkinson, 544 U.S. 709, 721, 125 S. Ct. 2113, 161 L. Ed. 2d 1020 (2005). RLUIPA is more expansive than prisoners' rights under the First Amendment and "affords to prison inmates a heightened protection from government-imposed burdens, by requiring that the government demonstrate that the substantial burden on the prisoner's religious exercise is justified by a compelling, rather than merely a legitimate, governmental interest." Smith v. Allen, 502 F.3d 1255, 1266 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277, 131 S. Ct. 1651, 179 L. Ed. 2d 700 (2011), (holding that the States, in accepting federal funding, do not consent to waive their sovereign immunity to private suits for money damages under RLUIPA because no statute expressly and unequivocally includes such a waiver)(internal quotations omitted).
To establish a prima facie case under Section 3 of RLUIPA, a plaintiff must demonstrate that: (1) he engaged in a religious exercise; and (2) the religious exercise was substantially burdened. Smith, 502 F.3d at 1276. "Although RLUIPA bars inquiry into whether a particular belief or practice is 'central' to a prisoner's religion, ... the Act does not preclude inquiry into the sincerity of a prisoner's professed religiosity." Cutter, 544 U.S. at 725 n. 13. Once a plaintiff proves that a challenged practice substantially burdens his religious exercise, the burden shifts to the defendant to show that the policy is the least restrictive means of furthering a compelling governmental interest. Rich v. Sec'y, Fla. Dep't of Corr., 716 F.3d 525, 532 (11th Cir. 2013).
RLUIPA does not create a private action for monetary damages against prison officials sued in their individual capacity. Smith, 502 F.3d at 1275 . However, RLUIPA creates an express private cause of action for injunctive and declaratory relief against the government, which includes "States, counties, municipalities, their instrumentalities and officers, and persons acting under color of state law." Sossamon, 131 S.Ct. at 1656; see Gardner v. Riska, 444 Fed. Appx. 353 (11th Cir. 2011) (DOC is a state agency and thus not a person within the meaning of Section 1983, so a claim for damages against DOC is frivolous; a claim for injunctive relief against DOC is not frivolous because the RLUIPA creates a private cause of action for injunctive and declaratory relief against the government). Therefore, defendants who currently have official capacity to provide a remedy through declaratory or injunctive relief may be sued in their official capacities for such relief and the Eleventh Amendment is no bar. See Socialist Workers Party v. Leahy, 145 F.3d 1240, 1248 (11th Cir. 1998); Ex parte Young, 209 U.S. 123, 157, 28 S. Ct. 441, 52 L. Ed. 714 (1908); see, e.g., Muhammad v. Crosby, 2008 U.S. Dist. LEXIS 42643, 2008 WL 2229746 at *19 (N.D. Fla. May 29, 2008) (RLUIPA claims for declaratory and injunctive relief are properly lodged against the Secretary, Assistant Secretary, and Deputy Assistant Secretary of DOC in their official capacities because they hold office and have authority to respond to such relief).
The Plaintiff has sued the two named Defendants, and as can best be discerned, it appears that both are Chaplain Officers at the BCMJ. The Complaint identified the offending policy, namely, the deadline by which he was allowed to sign up for Passover. He has also demonstrated that his religious beliefs were unduly burdened as a result of the Defendants' actions. Plaintiff indicated that he is sincere in his religious and spiritual practices. Moreover, Plaintiff identified the specific actions which were taken by the individual defendants. Thus, Plaintiff has sustained his burden to demonstrate a violation of his First and Fourteenth Amendment rights. He has set forth sufficient facts to support a claim under the RLUIPA.
C. Compensatory and Punitive Damages
It is well settled that in a §1983 action, a plaintiff may recover damages for monetary loss, physical pain and suffering, mental and emotion distress, impairment of reputation, and personal humiliation. Slicker v. Jackson, 215 F.3d 1225, 1231 (11th Cir. 2000). The Prison Litigation Reform Act ("PRLA") provides that "[n]o federal civil action may be brought by a prisoner confined in a jail, prison, or other correctional facility, for mental or emotional injury suffered while in custody without a prior showing of physical injury or the commission of a sexual act...." 42 U.S.C. §1997e(e).
The Eleventh Circuit has determined that the phrase "[F]ederal civil actions" means all federal claims, including constitutional claims. Napier v. Preslicka, 314 F.3d 528, 532 (11th Cir. 2000) (citation omitted). Where a prisoner plaintiff alleges constitutional violations he is prevented under §1997e(e) from seeking punitive or compensatory damages in the absence of a physical injury. Smith v. Allen, 502 F.3d 1255, 1271 (11th Cir. 2007), abrogated on other grounds by Sossamon v. Texas, 563 U.S. 277, 131 S.Ct. 1651, 179 L.Ed.2d 700 (2011)); see also Al-Amin v. Smith, 637 F.3d 1192, 1199 (11th Cir. 2011) (noting that Napier court, by affirming dismissal of Napier's entire claim, "concluded, albeit sub silentio, that Napier's punitive claim was barred by §1997e(e) just as much as his compensatory claim.").
Thus, a prisoner, therefore, may not proceed in a civil rights action for compensatory or punitive damages unless he alleges some physical injury that is more than de minimis. Mitchell v. Brown & Williamson Tobacco Corp., 294 F.3d 1309, 1312-13 (11th Cir. 2002); Al-Amin v. Smith, 637 F.3d 1192 (11th Cir. 2011). The physical injury must be more than " de minimis" but need not be "significant." Harris v. Garner, 190 F.3d 1279, 1286 (11th Cir. 1999), reh'g en banc granted and opinion vacated, 197 F.3d 1059 (11th Cir. 1999), opinion reinstated in relevant part en banc, 216 F.3d 970 (11th Cir. 2000). Section 1997e(e) does not affect the availability of declaratory or injunctive relief or nominal damages. Id.
The Plaintiff has not alleged a "physical injury," but merely claims emotional and mental injury. Even if the allegations can be seen as claiming some physical injury, he has failed to state injury that is more than de minimis. See Mitchell, supra; see also, Mann v. McNeil, 360 Fed.Appx. 31, 32 (11th Cir. 2010)(holding that §1997e(e) barred inmate's claims for monetary damages; inmate's complaints of vague injuries to his back and scrapes and marks on his knees and legs did not amount to more than de minimis physical injury); Nolin v. Isbell, 207 F.3d 1253, 1258 n.4 (11th Cir. 2000)(bruises received during an arrest were non-actionable de minimis injury); Quinlan v. Personal Transp. Servs. Co., 329 Fed.Appx. 246, 249 (11th Cir. 2009) (holding that §1997e(e) barred pre-trial detainee's claims for compensatory and punitive damages; complaints of temporary chest pain, headache and difficulty breathing while in transport van, as well as subsequent "continuous back pain in [his] lower back that periodically cause[d] [him] to walk hunched over," did not constitute more than de minimis physical injury required under §1997e(e), since none of the conditions required immediate medical attention or evidenced physical injury besides discomfort); Dixon v. Toole, 225 Fed. Appx. 797, 799 (11th Cir. 2007) ("district court did not err by finding that Dixon's claims for compensatory damages did not surmount §1997e's bar because he failed to put forth evidence of physical injury besides discomfort."). However, nominal damages, may still be recoverable. Smith, 502 F.3d at 1271. Thus, the Plaintiff's claims for compensatory and punitive damages arising from any purported physical, mental, and emotional injuries should be dismissed.
D. Claim for Declaratory and Injunctive Relief
The Plaintiff seeks an order from the court declaring that the Plaintiff be allowed to practice his religion. He also appears to request that this court issue an injunction prohibiting the defendants from barring him from practicing his religion. (Id.).
The RLUIPA creates a private cause of action for injunctive and declaratory relief against the government. Therefore, the named Defendants who currently have official capacity to provide a remedy through declaratory or injunctive relief may be sued in their official capacities for such relief and the Eleventh Amendment is no bar. See Socialist Workers Party v. Leahy, 145 F.3d 1240, 1248 (11th Cir. 1998); Ex parte Young, 209 U.S. 123, 157, 28 S. Ct. 441, 52 L. Ed. 714 (1908); see, e.g., Muhammad v. Crosby, 2008 U.S. Dist. LEXIS 42643, 2008 WL 2229746 at *19 (N.D. Fla. May 29, 2008) (RIUPLA claims for declaratory and injunctive relief are properly lodged against the Secretary, Assistant Secretary, and Deputy Assistant Secretary of DOC in their official capacities because they hold office and have authority to respond to such relief). Construed liberally, the Plaintiff shall be able to proceed and develop his claim for declaratory and injunctive relief.
V. Conclusion
Based on the foregoing, it is recommended as follows:
1. The complaint proceed against Defendants Jordan and Aronofsky as to the First Amendment and RLUIPA claims arising from the allegations;
2. Plaintiff's request for compensatory and punitive damages be dismissed for failure to state a claim upon which relief can be granted, but the claim for declaratory and injunctive relief proceed.
Objections to this report may be filed with the District Judge within fourteen days of receipt of a copy of the report. Failure to file timely objections shall bar plaintiff from a de novo determination by the district judge of an issue covered in this report and shall bar the parties from attacking on appeal factual findings accepted or adopted by the district judge except upon grounds of plain error or manifest injustice. See 28 U.S.C. §636(b)(1); Thomas v. Arn, 474 U.S. 140, 149, 106 S. Ct. 466, 88 L. Ed. 2d 435 (1985); Henley v. Johnson, 885 F.2d 790, 794 (1989); LoConte v. Dugger, 847 F.2d 745 (11th Cir. 1988); RTC v. Hallmark Builders, Inc., 996 F.2d 1144, 1149 (11th Cir. 1993).
Signed this 13th day of July, 2018.
/s/ Patrick A. White
UNITED STATES MAGISTRATE JUDGE