United States District Court, D. Colorado
MILTON J. WEINSTEIN, Plaintiff,
STEVEN WOITTE, Food Service Director, Airmark Food Service, Defendant.
RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE AND
Y. Wang Magistrate Judge.
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.
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
Amended Complaint, Mr. Weinstein named as defendants Mr.
Woitte, food service director and representative of Airmark,
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.” [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].
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]. Thus, the case proceeds with Mr. Woitte
as the sole Defendant.
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
Federal Rule of Civil Procedure 12(b)(6)
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)).
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).
Pro Se Litigants
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).
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