Weinstein v. Woitte

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND ORDER

          Nina Y. Wang Magistrate Judge.

         This civil action comes before the court on Defendant Steven Woitte's (“Defendant” or “Mr. Woitte”) Motion to Dismiss Plaintiff's Amended Complaint (“Motion to Dismiss”). [#45, filed April 2, 2018]. This matter was referred to the undersigned Magistrate Judge pursuant to the Order Referring Case dated January 11, 2018, [#12], and the memorandum dated April 3, 2018, [#46]. This court has reviewed the Motion to Dismiss and associated briefing, the case record, and the applicable case law, and for the reasons set forth below respectfully RECOMMENDS that the Motion to Dismiss be GRANTED IN PART and DENIED IN PART.

         BACKGROUND

         Plaintiff Milton Weinstein (“Plaintiff” or “Mr. Weinstein”) initiated this action on October 16, 2017, by filing a pro se Prisoner Complaint pursuant to 42 U.S.C. § 1983 claiming he had been denied a kosher diet. See generally [#1]. Mr. Weinstein was within the custody of the Larimer County Sheriff and was housed at the Larimer County Detention Facility (“LCDF”) in Fort Collins at the time he filed his Complaint. The court granted Mr. Weinstein leave to proceed in forma pauperis under 28 U.S.C 1915, [#6], and, pursuant to that statute, ordered him to file an amended pleading. See [#7]. Mr. Weinstein subsequently filed an Amended Complaint asserting one claim for violation of the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). [#10].

         In his Amended Complaint, Mr. Weinstein named as defendants Mr. Woitte, food service director and representative of Airmark, ^[1] as well as C.O. Dumell, lead supervisor, and Bret Richard, Chaplin. Mr. Weinstein alleges generally that the food at LCDF was “not certified kosher diets recognized by a Rabbi or anyone of Jewish Religion, ” and that LCDF personnel “[t]herefore had me engage in a diet that did not adhere to my religious belief.” [Id. at 4]. Mr. Weinstein also alleges that Mr. Woitte is “[t]he main person responsible, ” and, specifically, “responsible for ordering the kosher diet, and making sure it's certified kosher, ” and that Mr. Woitte “can't provide proof from a Rabbi or a certification that he is serving a kosher diet, he just mixes up different servings and calls it kosher, ” and he “serves hot food on Shabot (the Sabith) which is not allowed in the Jewish Religion.”^[2] [Id. at 5]. Mr. Weinstein asks for $25, 000 in damages, but does not seek any injunctive relief. Following its review of the Amended Complaint under § 1915(e)(2) and Local Rule 8.1, the court ordered that the matter be reassigned to the Honorable Christine M. Arguello, who referred the case to the undersigned Magistrate Judge for pretrial management. See [#11, #12].

         On April 2, 2018, Mr. Woitte filed the pending Motion to Dismiss, arguing that he is not a state actor and that monetary damages are not available under RLUIPA. See [#45]. Two days later, this court held a Status Conference at which the undersigned discussed, among other things, the filing of Defendant's Motion to Dismiss, Plaintiff's new mailing address, and the indication on the docket that the U.S. Marshal Service had been unable to locate and serve C.O. Dumell and Bret Richard. See [#51]. Plaintiff did not object to the dismissal of Dumell and Richard, and the court memorialized the voluntary dismissal under Federal Rule of Civil Procedure 41(a) in a subsequently issued Minute Order. See [#52].^[3] Thus, the case proceeds with Mr. Woitte as the sole Defendant.

         Plaintiff did not respond to the Motion to Dismiss, and review of the docket dating from the Status Conference, at which time Mr. Weinstein provided the court with an updated address, does not reveal that any mail has been returned as undeliverable. In addition, during the Status Conference, the court specifically discussed the instant Motion with Plaintiff and advised him that his response was due no later than May 2, 2018. The Motion is ripe for resolution, see Local Rule 7.1(d), and the court addresses Defendant's arguments below.

         LEGAL STANDARDS

         I. Federal Rule of Civil Procedure 12(b)(6)

         Rule 12(b)(6) states that a court may dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). In deciding a motion under Rule 12(b)(6), the court must “accept as true all well-plead factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.” Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009) (citing Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

         “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). Plausibility refers to the “scope of the allegations in a complaint: if they are so general that they encompass wide swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims across the line from conceivable to plausible.'” Oklahoma v. Robbins, 519 F.3d 1242, 1247 (10th Cir. 2008) (quoting Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). “The burden is on the plaintiff to frame a ‘complaint with enough factual matter (taken as true) to suggest' that he or she is entitled to relief.” Oklahoma 519 F.3d at 1247 (quoting Bell Atlantic Corp. 127 S.Ct. at 1965). When reviewing a motion to dismiss pursuant to Rule 12(b)(6), the court “must determine whether the complaint sufficiently alleges facts supporting all the elements necessary to establish an entitlement to relief under the legal proposed theory.” Forest Guardians v. Forsgren, 478 F.3d 1149, 1160 (10th Cir. 2007).

         II. Pro Se Litigants

         Mr. Weinstein is appearing pro se, and thus the court “review[s] his pleadings and other papers liberally and hold[s] them to a less stringent standard than those drafted by attorneys.” Trackwell v. United States, 472 F.3d 1242, 1243 (10th Cir. 2007); see also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standard than formal pleadings drafted by lawyers”). However, the court's role is not to act as the Plaintiff's advocate. Gallagher v. Shelton, 587 F.3d 1063, 1067 (10th Cir. 2009). In this District, failure to respond to a motion to dismiss is not deemed as consent to its entry. Gatrell v. City & Cty. of Denver, No. 10-CV-02311-REB-KLM, 2012 WL 219434, at *1 (D. Colo. Jan. 23, 2012). In any event, when dealing with a pro se plaintiff, the Tenth Circuit has stated its preference for resolution of the substance of a motion to dismiss despite the pro se plaintiff's failure to respond. Id. (citing Persik v. Manpower, Inc., 85 Fed.Appx. 127, 130 (10th Cir.2003) (unpublished decision)), report and recommendation adopted, No. 10-CV-02311-REB-KLM, 2012 WL 592889 (D. Colo. Feb. 22, 2012).

         ANALYSIS

         As discussed above, Mr. Weinstein's sole claim arises under RLUIPA. The purpose of RLUIPA is to “protect[] institutionalized persons who are unable freely to attend 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 (2005). RLUIPA provides in relevant part that:

No government shall impose a substantial burden on the religious exercise of a person residing in or confined to an institution . . . unless the government demonstrates that ...