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Arendas v. Lewis
United States District Court, D. Colorado
November 29, 2016
PETER JOHN ARENDAS, Plaintiff,
MESA COUNTY SHERIFF MATT LEWIS, SGT. ROUNDTREE, M.C.S.D., S/D CHAMBERS, M.C.S.D., S/D KEIFER, M.C.S.D., S/D ERKMAN, M.C.S.D., S/D HEMPHILL, M.C.S.D., SGT. TATE, M.C.S.D., SGT. HODSON, M.C.S.D., S/D #2469 aka JOHN OR JANE DOE, M.C.S.D., S/D WESTERMIRE, M.C.S.D., S/D WILTGEN, M.C.S.D., SGT. MONTEZ, M.C.S.D., A. MOSLEY, Utah D.O.C., R. CHRISTENSEN, Utah D.O.C., STATE OF UTAH, Operations Director of Utah State Prison, John or Jane Doe, and ROLLIN COOK, Utah Dept. Of Corrections Commissioner, Defendants.
RECOMMENDATION REGARDING DEFENDANTS' MOTIONS TO
P. Gallagher, United States Magistrate Judge
matter comes before the Court on the following motion:
Defendants (collectively), motion to dismiss (ECF # 72),
Plaintiff's responses (ECFs # 76, 79, & 81) (a number
of other filings from Plaintiff could loosely be construed as
responses and all have been considered by the Court) and
Defendants' reply (ECF #90) This motion has been referred
to this Magistrate Judge for recommendation. (ECF
#86). The Court has reviewed the pending motion,
responses, reply and any attachments. The Court has also
considered the entire case file, the applicable law, and is
sufficiently advised in the premises. Oral argument is not
necessary for resolution of these matters. This Magistrate
Judge recommends that the motion to dismiss be GRANTED.
and Venue Jurisdiction and venue are established for the
single claim which was drawn in this action.
now proceeds pro se. The court must construe the
pleading(s) liberally because Mr. Arendas is not represented
by an attorney. See Haines v. Kerner, 404 U.S. 519,
520-21 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110
(10th Cir. 1991). However, the court should not be
an advocate for a pro se litigant. Id. at
Summary Plaintiff's amended complaint (ECF # 36) included
several claims. Only claim one, and that only against limited
Defendants (see stricken
Defendants above) was ultimately drawn. The remaining claims
were dismissed, claim two for being legally frivolous and
claim three for being legally frivolous. The surviving claim
one, titled “offending my religious practices”
(ECF # 36, p. 11) was construed as a claim for alleged
violations of Plaintiff's First Amendment right to freely
exercise his religion under 42 U.S.C. § 1983 (ECF #40,
p.3). Upon further review, and keeping in mind the liberal
construction requirements for a pro se pleading, the
Court has determined to also view this as a claim under the
Religious Land Use and Institutionalized Persons Act of 2000
(RLUIPA) 42 U.S.C. §§ 2000cc-1. Essentially, claim
one will be reviewed as both a free exercise claim and as a
is an inmate in the Mesa County Detention Facility. Plaintiff
is required to wear an identification wrist band and is not
allowed to remove said wrist band. ECF #36, p.11, para. 1.
The wrist band is not medically related. Id.
Plaintiff has been required to wear the wrist band since
10/23/15. Id. Plaintiff has been sanctioned and/or
lost privileges for removing the wrist band. Id. at
pp. 11-12, paras. 2-4. The wearing of the wrist band violates
Plaintiff's Roman Catholic observances in that he must
pray without “have[ing] items affixed to [his] body
that did not come out of [his] mothers (sic) womb.”
Id. at pp. 11-12, paras. 1 & 5. Plaintiff seeks
injunctory (sic) relief, the ability to remove the wrist band
in his cell during religious observance (perhaps also while
possessing an ID card) and $1, 000, 000.00 for pain,
suffering and discrimination. Id. at p.23.
specific statements regarding the wristband in his amended
complaint, as they relate to religion, are as follows:
My religious doctrine and practices I follow do not permit me
to wear an unremovable item from my body that is not
medically related. This also offends my prayer as a Roman
Catholic. (ECF #36, p. 11, para. 1).
The jail policy  violates my religious Roman Catholic
observances. . . . The jail policy has no allowance for my
Roman Catholic observance that I not have items affixed to my
body that did not come out of my mothers womb. (ECF #36, p.
12, para. 5) (sic).
I am requesting injunctory relief and a court order
permitting me to remove the I.D. wristband in my cell. The
wrist band has adjustable notches to affix the set screw in a
more loose fashion, so I can screw in a more loose fashion,
so I can slide it off in my cell during religious observance
daily. (ECF #36, p. 23) (sic).
Court may dismiss a complaint for failure to state a claim
upon which relief can be granted. Fed.R.Civ.P. 12(b)(6). To
withstand a Rule 12(b)(6) motion to dismiss, a complaint must
contain enough allegations of fact, which, taken as true,
“state a claim to relief that is plausible on its
face.” Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 570 (2007); Khalik v. United Air Lines,
671 F.3d 1188, 1190 (10th Cir. 2012). Although allegations of
fact are accepted as true, legal conclusions are not.
Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009). Mere
“labels and conclusions” and “a formulaic
recitation of the elements of a cause of action” will
not suffice. Twombly, 550 U.S. at 555. ...