                       NOT RECOMMENDED FOR PUBLICATION
                               File Name: 20a0207n.06

                                           No. 18-3678


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT
                                                                                       FILED
 RAYMOND ZARECK,                                         )                        Apr 14, 2020
                                                         )                   DEBORAH S. HUNT, Clerk
        Plaintiff-Appellant,
                                                         )
                                                         )
 v.
                                                         )       ON APPEAL FROM THE
 CORRECTIONS CORPORATION OF AMERICA;                     )       UNITED STATES DISTRICT
                                                         )       COURT     FOR      THE
 MICHAEL PUGH, Warden of Corrections
                                                         )       NORTHERN DISTRICT OF
 Corporation of America; DENNIS JOHNSON,
                                                         )       OHIO
 Acting Warden of Corrections Corporation of
                                                         )
 America; FOOD SERVICE ADMINISTRATOR;
                                                         )                  OPINION
 FOOD SERVICE SUPERVISOR,
                                                         )
        Defendants-Appellees.                            )



       BEFORE: STRANCH, READLER, and MURPHY, Circuit Judges.

       JANE B. STRANCH, Circuit Judge. Raymond Zareck alleges that while incarcerated at

the Corrections Corporation of America (CCA) facility in Youngstown, Ohio, CCA officials fed

him and other Muslim prisoners pork portrayed as turkey even though eating pork violates

Zareck’s religious beliefs. The district court dismissed Zareck’s fee-paid Complaint before service

and without granting leave to amend because it concluded that Zareck’s allegations were “totally

implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion”

under Apple v. Glenn, 183 F.3d 477, 479 (6th Cir. 1999). We REVERSE and REMAND.

                                     I.   BACKGROUND

       Zareck is Muslim and was incarcerated at the Ohio CCA facility from November 9, 2015

through February 8, 2016. As a religious practice, Zareck does not eat pork. CCA officials told
No. 18-3678, Zareck v. Corrections Corp. of Am., et al.


him that he would be able to eat a religiously-appropriate “pork free” diet while incarcerated. He

alleges that he and several other Muslim inmates were instead fed pork products that the

Defendants portrayed as turkey.

       When he learned that he and other Muslim prisoners were being fed pork products, he filed

a grievance. In response, CCA officials told him he would be all right and that it was an isolated

incident. But Zareck contends that it was not an isolated incident; he was fed pork portrayed as

turkey on “over twelve occasions.” After he exhausted the grievance procedure, Zareck filed a

pro se 42 U.S.C. § 1983 action against CCA; Michael Pugh, the Warden of CCA; Dennis Johnson,

the acting Warden of CCA; the Food Service Administrator; and the Food Service Supervisor. He

paid the associated filing fee. Zareck sought injunctive, declaratory, and compensatory relief for

the alleged violations of his constitutional rights.

       Before Zareck could serve his fee-paid Complaint on Defendants, the district court

dismissed the Complaint sua sponte. Relying on the Apple standard, the court determined that the

Complaint was so lacking in legal plausibility and/or so devoid of merit that the court must dismiss

it without granting leave to amend or giving Zareck an opportunity to respond to a motion to

dismiss. Apple, 183 F.3d at 479. Zareck timely appealed. Because the Defendants were never

served, they are not parties to this appeal. Zareck is no longer confined at CCA Youngstown.

                                        II.   ANALYSIS

       We review a district court’s dismissal for lack of subject matter jurisdiction de novo. Willis

v. Sullivan, 931 F.2d 390, 395 (6th Cir. 1991). Pro se complaints must be liberally construed and

“held to less stringent standards than” those used in evaluating pleadings submitted by attorneys.

Erickson v. Pardus, 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)).

“Generally, a district court may not sua sponte dismiss a complaint where the filing fee has been

paid unless the court gives the plaintiff the opportunity to amend the complaint.” Apple, 183 F.3d


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at 479 (citing Benson v. O’Brian, 179 F.3d 1014, 1017 (6th Cir. 1999)). Sua sponte dismissal of

a paid complaint for failure to invoke subject-matter jurisdiction is appropriate, however, in the

“rarest” circumstance “when the allegations of a complaint are totally implausible, attenuated,

unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Id. at 479–80 (affirming

dismissal for lack of jurisdiction where a plaintiff “sued Senator John Glenn, Chief Justice William

Rehnquist, and other top government officials, claiming that the defendants violated his First

Amendment right to petition the government because they did not answer his many letters or take

the action requested in those letters.”). Because this avenue of dismissal circumvents procedural

protections and the adversarial process, its use is not proper if a district court is merely skeptical

about a plaintiff’s ability to ultimately state a claim under Rule 12(b)(6). See id. at 480. It is

reserved only for patently frivolous complaints, which present no Article III case because there is

“no room for the inference that the question[s] sought to be raised can be the subject of

controversy.” Hagans v. Lavine, 415 U.S. 528, 537 (1974) (quoting Levering & Garrigues Co. v.

Morrin, 289 U.S. 103, 105 (1933)).

       The district court here correctly identified that § 1983 claims may be brought against only

state, not federal, actors. It next concluded that it lacked subject-matter jurisdiction over Zareck’s

Complaint because, in its view, even construing Zareck’s claims under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), the allegations were “totally

implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.”

Zareck v. Corr. Corp. of Am., No. 4:18 CV 334, 2018 WL 3241242, at *1 (N.D. Ohio July 3, 2018)

(quoting Apple, 183 F.3d at 479). Specifically, the court noted that CCA is a private prison facility,

and relying on Correctional Services Corporation v. Malesko, 534 U.S. 61 (2001), decided that a

Bivens action cannot be brought against a private corporation that has contracted with the federal




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Bureau of Prisons under any circumstances. Zareck, 2018 WL 3241242 at *1. As for Zareck’s

claims against the individual Defendants, the court cited Minneci v. Pollard, 565 U.S. 118 (2012),

to support its conclusion that “no Bivens action lies against ‘privately employed personnel working

at a privately operated federal prison’ for constitutional rights violations where the conduct alleged

‘is of a kind that typically falls within the scope of traditional state tort law.’” Zareck, 2018 WL

3241242 at *1 (quoting Minneci, 565 U.S. at 131). The court, however, failed to analyze whether

Zareck’s claims relate to conduct “of a kind that typically falls within the scope of traditional state

tort law,” or whether any other state or federal remedy may be available to him.

       The court, for example, did not consider whether Zareck’s allegations may have merit

under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb-1. See id. It is true

that Zareck’s pro se and fee-paid Complaint does not cite RFRA.           By dismissing this type of

complaint prior to service and without the benefit of the adversarial process, however, the district

court tasked itself with showing “the rarest of circumstances where . . . the complaint is deemed

totally implausible.” Apple, 183 F.3d at 480.

       A.      RFRA

       RFRA prohibits the federal government, including any instrumentality, official, or “person

acting under color of law,” from “substantially burden[ing] a person’s exercise of religion,” unless

the government actor demonstrates that the substantial burden “1) is in furtherance of a compelling

governmental interest; and (2) is the least restrictive means of furthering that compelling

governmental interest.”      42 U.S.C. § 2000bb-1(a)–(b); id. § 2000bb-2(a).            A defendant

substantially burdens a person’s exercise of religion by forcing the person to choose between

engaging in conduct that violates sincerely held religious beliefs and facing serious consequence.

New Doe Child #1 v. Cong. of United States, 891 F.3d 578, 589 (6th Cir. 2018).




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       Here, Zareck has alleged a sincerely held religious belief—as a Muslim, he must refrain

from eating pork as part of the practice of his faith. The allegations that Defendants fed him pork

products portrayed as turkey also likely show that Zareck’s religious exercise was substantially

burdened because serving “a small number of noncompliant meals—even a single violation—can

be a substantial burden.” Brandon v. Kinter, 938 F.3d 21, 35 (2d Cir. 2019); see also Haight v.

Thompson, 763 F.3d 554, 564–65 (6th Cir. 2014) (ruling that state prison officials’ decision to

deny prisoners’ request for Native American foods for their annual powwow imposed a substantial

burden on their religious practices under the Religious Land Use and Institutionalized Persons Act

of 2000 (RLUIPA), 42 U.S.C.A. § 2000cc–1(a)).

       A person whose religious exercise has been burdened may assert a claim to “obtain

appropriate relief.” Id. § 2000bb-1(c). Because Zareck is no longer incarcerated at CCA, his

claims for injunctive and declaratory relief are moot, leaving only his claims for damages.

Whether “appropriate relief” includes damages when defendants are a private-prison facility or

private-prison officials acting in their individual capacity, however, are open questions in this

circuit. And a broader articulation of the latter—whether RFRA allows individual-capacity

damages suits for violations of the law’s substantive protections of religious belief—is sufficiently

complicated and at issue in the courts that the Supreme Court recently granted certiorari to consider

it. See FNU Tanzin v. Tanvir, No. 19-71, 2019 WL 6222538, at *1 (U.S. Nov. 22, 2019).

       To be sure, our case law specifies that RLUIPA, RFRA’s cousin, does not permit plaintiffs

to collect money damages from state prison officials sued in their individual capacities. Haight,

763 F.3d at 559. But it is not clear that our reasoning in Haight v. Thompson applies with equal

force to RFRA claims brought against a private-prison facility or to individual-capacity RFRA

claims brought against officials working for a private corporation that has contracted with the




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federal government to provide prison food services. The complexity of these issues, likely to be

addressed in Tanzin, grows out of the Supreme Court’s earlier sovereign immunity case, Sossamon

v. Texas, 563 U.S. 277 (2011). At present, the only courts of appeals to consider whether RFRA

allows individual-capacity suits for money damages have determined that it does. See Tanvir v.

Tanzin, 894 F.3d 449, 463 (2d Cir. 2018) (finding that the phrase “appropriate relief” includes

money damages in the context of individual-capacity suits against government officials based on

the Franklin presumption) (cert. granted, Tanzin, 2019 WL 6222538); Mack v. Warden Loretto

FCI, 839 F.3d 286, 301 (3d Cir. 2016) (interpreting RFRA as providing for monetary relief from

persons who violate the statute in their individual capacity under color of law).1

        Because we have yet to analyze whether damages may constitute “appropriate relief” under

RFRA, and the facts alleged in Zareck’s Complaint likely plead violations of RFRA’s substantive

protections, Zareck should have the opportunity to amend his Complaint to add this claim, if he so

chooses.

        B.       Bivens

        Relying on Correctional Services Corporation v. Malesko, 534 U.S. 61, 63 (2001), the

district court decided that a Bivens action cannot be brought against a private corporation that has

contracted with the Federal Bureau of Prisons under any circumstances. On this basis, it dismissed

Zareck’s claims against CCA, a private prison facility. Malesko, however, does not render

Zareck’s claims against CCA or its individual employees so totally implausible as to defeat subject

matter jurisdiction. Even though Malesko refused to expand Bivens by allowing a suit against a



1
 Some other circuits have not encountered an appropriate occasion to answer the question. See Hale v. Fed. Bureau
of Prisons, 759 F. App’x 741, 744 n.4 (10th Cir. 2019) (declining to consider “whether RFRA damages claims are
available against individual defendants); Fazaga v. Fed. Bureau of Investigation, 916 F.3d 1202, 1246 n.42 (9th Cir.
2019) (“Because we affirm dismissal on another ground, we do not reach” whether RFRA permits “damages suits
against individual-capacity defendants.”)



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private corporation that does not prevent Zareck, at this preliminary stage of litigation, from

pursuing a claim that a federal court may at least consider after briefing from the respective parties.

       The district court further supported its dismissal of the individual Defendants by reference

to Minneci v. Pollard, 565 U.S. 118, 131. The Minneci Court held that no Bivens remedy exists

for a federal prisoner seeking “damages from privately employed personnel working at a privately

operated federal prison, where the conduct allegedly amounts to a violation of the Eighth

Amendment, and where that conduct is of a kind that typically falls within the scope of traditional

state tort law,” such as “conduct involving improper medical care.” 565 U.S. at 131. Where such

a remedy is available, the plaintiff “must” instead “seek a remedy under state tort law.” Id. The

Court left to another day whether to imply a Bivens action in a case involving private-prison

officials engaged in different types of constitutional violations, including even a different type of

Eighth Amendment violation. Id. at 130.

       The district court here did not consider whether Zareck’s claims against the individual

Defendants relate to conduct “of a kind that typically falls within the scope of traditional state tort

law,” id. at 131, or whether there was any “‘alternative, existing process’ capable of protecting the

constitutional interests at stake,” id. at 125 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007)).

       Because neither Malesko nor Minneci stand for the proposition that Zareck’s allegations

are so “totally implausible” that they strip the district court of subject-matter jurisdiction under

Rule 12(h)(3), dismissal was improper. The district court is correct that the Supreme Court has

been reluctant to extend the Bivens remedy. Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017). And

it is true that any potential Bivens claim is likely “fraught with other troubles.” Marie v. Am. Red

Cross, 771 F.3d 344, 365 (6th Cir. 2014). But these obstacles do not automatically render Zareck’s

claims “devoid of merit” or “no longer open to discussion.” Apple, 183 F.3d at 479. As a result,




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sua sponte dismissal of Zareck’s fee-paid Complaint at this stage—prior to service and without

giving Zareck an opportunity to amend—was inappropriate.

                                  III.   CONCLUSION

       For the foregoing reasons, we REVERSE and REMAND so that Zareck may amend his

Complaint and serve the Defendants.




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