                            UNITED STATES DISTRICT COURT
                            FOR THE DISTRICT OF COLUMBIA

Stephen G. Burke,                      :
                                       :
               Plaintiff,              :
       v.                              :               Civil Action No. 11-0717 (CKK)
                                       :
Harley Lappin et al.,                  :
                                       :
               Defendants.             :


                                  MEMORANDUM OPINION

       Plaintiff, a prisoner currently at the United States Penitentiary (“USP”) in Lewisburg,

Pennyslvania, sues former Bureau of Prisons (“BOP”) Director Harley Lappin and three other

BOP officials under Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S.

388 (1971), the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. § 2000bb, and the

First, Fifth and Eighth Amendments to the Constitution. The complaint arises from the

conditions of plaintiff’s confinement at the Federal Correctional Institution (“FCI”) in Talladega,

Alabama, from which he was recently transferred. In addition to Lappin, plaintiff sues Joyce

Conley, former Assistant BOP Director for Correctional Programs, her apparent successor, D.

Scott Dodrill, and John Dignam, Chief of BOP’s Office of Internal Affairs. See Compl. ¶¶ 7, 14,

15. Plaintiff sues all of the defendants in their personal capacity for monetary damages and

Lappin and Dodrill also in their official capacity for declaratory and injunctive relief. Id. ¶ 8.

       Defendants move to dismiss the complaint under Rules 12(b)(1) for lack of subject matter

jurisdiction, (b)(2) for lack of personal jurisdiction, (b)(3) for improper venue, (b)(5) for

insufficient service of process, and (b)(6) for failure to state a claim upon which relief can be

granted. See Mem. of P. & A. in Support of Defs.’ Mot. to Dismiss Pl.’s Compl. (“Defs.’

Mem.”) [Dkt. # 17] at 1. Upon consideration of the parties’ submissions, the Court finds that

(1) sovereign immunity bars the RFRA claim for damages, and (2) plaintiff has failed to state a
Bivens claim against the named defendants. In addition, the Court finds that plaintiff’s remaining

First Amendment claim and claims for injunctive and declaratory relief are moot in light of his

transfer from FCI Talledega, where the claims arose. Therefore, the Court will grant defendants’

motion to dismiss the damages claims under Rules 12(b)(1) and (b)(6), deny plaintiff’s pending

motions, and dismiss the case in its entirety.1

                                    I. BACKGROUND

       Plaintiff brings the following three causes of action: “Claim One: Violation of U.S.

Const., Amend. I (Religious Accommodation and Exercise thereof) by defendants Lappin,

Conley, Dodrill,” Compl. ¶ 9; “Claim Two: Violation of U.S. Const., Amend. V (Denial of Due

Process) by defendants Lappin and Conley,” id. ¶ 10; “Claim Three: Violation of U.S. Const.

VIII (Conditions of Confinement) by defendants Lappin, Conley, Dodrill and Dignam,” id. ¶ 11.

       In Claim One, plaintiff states that he is a devout practitioner of Judaism who must

consume only kosher foods “as set forth by the Laws of Kashruth,” prepared in a manner that

avoids contact with non-kosher foods. Compl. ¶¶ 16-18. “[F]or many years,” BOP allegedly

“provided [J]ewish inmates with a nutritional amount of fresh vegetables, fruits, and generally

prepackaged hot or cold entrees from appropriate vendors.” Id. ¶ 19. However, in 2009, Lappin

and Conley allegedly “approved” a change to the kosher offerings that “eliminate[d] all fresh

vegetables, significantly reduce[d] fresh fruit, and convert[ed] entirely to prepackaged entrees,


       1
           Defendants note that dismissal is appropriate for lack of personal jurisdiction because
plaintiff has not properly served the individual defendants with process. See Defs.’ Mem. at 8,
n.4. Because plaintiff is proceeding in forma pauperis and, thus, relying on the court officers to
perfect service, the Court would not dismiss the complaint under either Rule 12(b)(2) or 12(b)(5)
without first allowing plaintiff the opportunity to assist the court officers with curing the service
deficiencies. Therefore, to the extent that defendants have moved to dismiss on these grounds,
the motion is denied. In addition, defendants argue that as to the claims against defendants in
their personal capacity, dismissal is appropriate on the ground of improper venue because the
underlying events occurred in Alabama. See Defs.’ Mem. at 8-10. While they are correct on this
point, the Court need not address the venue question because the personal-capacity claims will be
dismissed on the merits.

                                                  2
whole grain bread.”2 Id. ¶ 20. Allegedly, as a result of the change, plaintiff “‘was repeatedly

placed on [an] alternative diet program,” that served him “a salami (non-kosher) sandwich,

cheese sandwich, piece of fruit and container of milk.” Id. ¶ 22. Plaintiff further alleges that

“this meal was prepared in a manner allowing contact with non-kosher foods” and was delivered

to his cell in an unsanitary manner. Id. Because of the alleged “contamination” of his food,

plaintiff alleges that he went “for days and weeks without consuming any meals subsisting upon

water only . . . .” Id. ¶ 23.

        According to plaintiff, Lappin, Conley and Dodrill “were made aware through letters,

[administrative] appeals, [and] inquiries from member[s] of congress regarding the practices at

[BOP] facilities [but] [they] took no action to abate the practices and to offer Plaintiff and others

similarly situated a kosher diet.” Id. ¶¶ 24-25.

        In Claim Two, plaintiff alleges that in November 2008, Lappin “promulgated Program

Statement 5217.01 thus creating the SMU [Security Management Unit] Program.” Id. ¶ 28.

According to plaintiff “SMU inmates lack access to substantive educational or rehabilitative

programs. Televisions were installed, but were ordered left off by [] Lappin. Phone, visitation

and mail access [are] curtailed, censored, and highly monitored in SMU.” Id. ¶ 31. Following a

hearing on March 16, 2009, conducted over plaintiff’s objection, plaintiff was designated to the

SMU where he “was subjected to the aforementioned conditions.” Id. ¶ 36.

        In Claim Three, plaintiff alleges that Lappin, Conley, and Dodrill were aware of the

conditions at SMU but “failed to take any action to investigate or correct those conditions.” Id.




        2
         Plaintiff does not dispute that the applicable policy, BOP Program Statement 4700.05,
“has been unchanged since 2006, and was not changed in 2009 . . . .” Defs.’ Mem. at 17 & Ex.
A.

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¶ 39. In addition, plaintiff faults Dignam for failing to investigate alleged misconduct by the staff

of the Special Investigative Supervisor. Id. ¶¶ 40-41.

       Plaintiff filed this action in April 2011 while confined at FCI Talledega. He seeks

declaratory and injunctive relief and monetary damages exceeding $2 million. Id. ¶¶ 43-46.

                                         II. DISCUSSION

       1. Subject Matter Jurisdiction

       Under the doctrine of sovereign immunity, “the United States may not be sued without its

consent and . . . the existence of consent is a prerequisite for jurisdiction.” United States v.

Mitchell, 463 U.S. 206, 212 (1983). Such consent may not be implied, but must be

“unequivocally expressed.” United States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992).

“RFRA does not waive the federal government’s sovereign immunity for damages.” Webman v.

Fed. Bureau of Prisons, 441 F.3d 1022, 1026 (D.C. Cir. 2006). The Court therefore will grant

defendants’ motion to dismiss the RFRA claim for damages under Rule 12(b)(1).

       2. Failure to State a Claim

       In Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388

(1971), the Supreme Court “recognized for the first time an implied private action for damages

against federal officers alleged to have violated a citizen's constitutional rights.” Corr. Servs.

Corp. v. Malesko, 534 U.S. 61, 66 (2001). Under Bivens, “it is damages or nothing.” Davis v.

Passman, 442 U.S. 228, 245 (1979) (citation and internal quotation marks omitted). To be held

liable under Bivens, the official must have participated personally in the alleged wrongdoing.

Liability cannot be based on a theory of vicarious liability or respondeat superior. See Ashcroft v.

Iqbal, --- U.S. ----, ----, 129 S.Ct. 1937, 1948 (2009) (“Because vicarious liability is inapplicable

to Bivens . . . suits, a plaintiff must plead that each Government-official defendant, through the



                                                  4
official's own individual actions, has violated the Constitution.”); id. (finding that “respondent

correctly concedes that Government officials may not be held liable for the unconstitutional

conduct of their subordinates under a theory of respondeat superior.”); Corr. Servs. Corp., 534

U.S. at 72 ("If a federal prisoner in a BOP facility alleges a constitutional deprivation, he may

bring a Bivens claim against the offending individual officer, subject to the defense of qualified

immunity . . . . [H]is only remedy lies against the individual[.]").

       Since the filing of the complaint, plaintiff has clarified that contrary to defendants’

characterization of the RFRA claim, he is not attacking BOP’s national policy on kosher meals

because allegedly the policy was not followed at FCI Talledega. See Pl.’s Response to Defs.’

Opp’n to Pl.’s Mot. to Amend and for Discovery and Reply to Pl.’s Opp’n to Defs.’ Mot. to

Dismiss (“Pl.’s Reply”) [Dkt. # 28] at 1-4. Plaintiff also makes clear that he is “speak[ing] for

myself and what happen[ed] to me at SMU Talladega.” Id. at 3.

       Plaintiff’s constitutional claims are vague, but to the extent that he is asserting

constitutional violations predicated on the paucity of the kosher food selections and the

conditions of his confinement at FCI Talladega, he has not alleged sufficient facts for which the

current and former high-level officials at BOP headquarters may be held liable. See Cameron v.

Thornburgh, 983 F.2d 253, 258 (D.C. Cir. 1993) (concluding that a complaint naming Attorney

General and the BOP Director as defendants based on theory of respondeat superior, without

allegations specifying their involvement in the case, did not state Bivens claim against them);

Epps v. U.S. Att’y Gen., 575 F. Supp. 2d 232, 239 (D.D.C. 2008) (“A superior official cannot be

held liable under . . . Bivens for the constitutional torts of employees under him or her; the

common law theory of respondeat superior does not pertain to the federal government in this

context.”) (citing Marshall v. Reno, 915 F. Supp. 426, 429-30 (D.D.C. 1996)).



                                                  5
       Plaintiff asserts that defendants were “notified personally” of the alleged wrongdoing by

his exhaustion of “over 50 administrative remedies,” Response to Defs.’ Mot. to Dismiss [Dkt. #

23] at 4, and he finds it “totally unrealistic to believe that none of the defendants were not aware

of the abuses taking place for almost 2 years at SMU Talladega.” Id. But plaintiff’s speculative

argument – which would apply to all prisoners who have exhausted their administrative remedies

with BOP – provides no basis for imposing personal liability on any of the named defendants

who could not have possibly participated in the day-to-day decisions about plaintiff’s

confinement at FCI Talledega. See Thomas v. U.S. 779 F. Supp. 2d 154, 157-8 (D.D.C. 2011)

(dismissing personal-capacity claim against BOP’s Administrator of National Inmate Appeals

where issuance of adverse decisions in response to grievances lacked “requisite personal

involvement” in the alleged unconstitutional behavior). Furthermore, “a prison official's decision

on an inmate grievance with respect to an alleged constitutional violation does not itself render

him personally liable under Bivens.” Gonzalez v. Holder, 763 F. Supp. 2d 145, 150 (D.D.C.

2011) (citations omitted). Therefore, the Court will deny as futile plaintiff’s pending motion to

amend the complaint to add as a defendant Harrell Watts, Administrator of National Inmate

Appeals, and a claim based on Watts’ adjudication of plaintiff’s grievances. See Mot. to Amend

Compl. [Dkt. # 22] at 1-2.

       To the extent that plaintiff’s claims for damages under the Fifth and Eighth amendments

may be considered as brought against the named defendants in their official capacity and, thus,

against the United States, they are foreclosed because the United States has not consented to be

sued for constitutional torts. See FDIC v. Meyer, 510 U.S. 471, 475-79 (1994); Dancy v. Dep’t

of Army, 897 F.Supp. 612, 614 (D.D.C. 1995) (citing cases).



                                                  6
        3. The Claims for Equitable Relief

        Bivens does not “extend . . . to a claim sounding in the First Amendment,” Iqbal, 556

U.S. at 1948 (citing Bush v. Lucas, 462 U.S. 367 (1983)), and injunctive relief has long been

recognized as the proper means for preventing entities from acting unconstitutionally. Corr.

Servs. Corp., 534 U.S. at 74. Given plaintiff’s clarification that the complaint is specific to his

treatment at FCI Talladega, Pl.’s Reply at 1-4, his recent transfer from FCI Talledga renders his

claims for injunctive and declaratory relief moot. See Cameron, 983 F.2d at 257 (“But as the

district court found, Cameron's impending transfer to Leavenworth made the claim for an

injunction moot.”); Ali v. Rumsfeld, 649 F.3d 762, 778 (D.C. Cir. 2011) (“[T]he availability of

[declaratory] relief presupposes the existence of a judicially remediable right.”) (citations and

internal quotation marks omitted; alteration in original). Therefore, the Court will dismiss the

complaint in its entirety.3

                                        III. CONCLUSION

        For the foregoing reasons, the Court will grant defendants’ motion to dismiss under Rules

12(b)(1) and (b)(6), and will deny plaintiff’s motion to amend the complaint. In addition, the

Court will deny as moot plaintiff’s motion for discovery to obtain the addresses of Conley,



        3
           Any new claims arising from plaintiff’s conditions of confinement at USP Lewisburg
are properly brought in the United States District Court for the Middle District of Pennsylvania
after he has exhausted his administrative remedies. See Porter v. Nussle, 122 S.Ct. 983, 992
(2002) (holding that "the [Prison Litigation Reform Act's] exhaustion requirement applies to all
inmate suits about prison life. . . ."); Cameron, at 257 (“We think it is in the interest of justice to
transfer the claims against appellees Kindt and DuBois to a district where venue is proper.”)
(citation omitted); Thomas, 779 F. Supp. 2d at 158-59 (deferring transfer of equitable claims
arising from the alleged misconduct of officials at BOP facility in Terre Haute, Indiana, pending
plaintiff’s response to the Court’s determination that transfer was warranted); Poullard v. Fed.
Bureau of Prisons, 535 F. Supp. 2d 146, 149-50 (D.D.C. 2008) (transferring RFRA action to
location where alleged acts occurred and where plaintiff was confined).

                                                   7
Dignam and Dodrill for purposes of serving them with process and his related motion for an

extension of time to supply said information. A separate Order accompanies this Memorandum

Opinion.



                                            __________s/s__________________
                                            COLLEEN KOLLAR-KOTELLY
                                            United States District Judge
DATE: October 21, 2011




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