Sweet v. Sloan

          RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          Kathleen M Tafoya, United States Magistrate Judge.

         This matter comes before the court on Defendants' “Motion to Dismiss” (Doc. No. 20 [Mot.], filed January 15, 2019). Plaintiff did not file a response.^[1]

         STATEMENT OF THE CASE

         Plaintiff, an inmate at the Teller County Jail, alleges that when he was booked into the jail, he declared himself to be a Christian. (Doc. No. 1 [Compl.] at 4.) After studying the bible, he “became persuaded that as a Christian he is a true Jew by the teachings of Paul.” (Id.) On August 28, 2018, Plaintiff requested to be put on a kosher diet, and Defendants Hammond and Boe told him that a rabbi must first convert Plaintiff to the Jewish faith. (Id.) Plaintiff states he appealed the denial of a kosher diet to Defendant Sloan, who denied his appeal. (Id.)

         Plaintiff asserts claims for the defendants' violations of Plaintiff's First and Fourteenth Amendment rights and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”). (Id. at 4-5.) Defendants move to dismiss all of Plaintiff's claims. (See Mot.)

         STANDARDS OF REVIEW

         A. Pro Se Plaintiff

         Plaintiff is proceeding pro se. The court, therefore, “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) (citations omitted). See also Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro se complaint “to less stringent standards than formal pleadings drafted by lawyers”). Pro se plaintiffs must “follow the same rules of procedure that govern other litigants” and “must still allege the necessary underlying facts to support a claim under a particular legal theory.” Thundathil v. Sessions, 709 Fed. App'x 880, 884 (10th Cir. 2017) (citations and internal quotation mark omitted). “[A] pro se plaintiff requires no special legal training to recount the facts surrounding his alleged injury, and he must provide such facts if the court is to determine whether he makes out a claim on which relief can be granted.” Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). A pro se litigant's “conclusory allegations without supporting factual averments are insufficient to state a claim upon which relief can be based.” Id.

         Courts “cannot take on the responsibility of serving as the litigant's attorney in constructing arguments” or the “role of advocate” for a pro se plaintiff. Garrett v. Selby Connor Maddux & Janer, 425 F.3d 836, 840 (10th Cir. 2005). A court may not assume that a plaintiff can prove facts that have not been alleged, or that a defendant has violated laws in ways that a plaintiff has not alleged. Assoc. Gen. Contractors of Cal., Inc. v. Cal. State Council of Carpenters, 459 U.S. 519, 526 (1983). See also Whitney v. New Mexico, 113 F.3d 1170, 1173- 74 (10th Cir. 1997) (court may not “supply additional factual allegations to round out a plaintiff's complaint”); Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir.1991) (the court may not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues”). The plaintiff's pro se status does not entitle him to application of different rules. See Montoya v. Chao, 296 F.3d 952, 957 (10th Cir. 2002).

         B. Failure to State a Claim

         Federal Rule of Civil Procedure 12(b)(6) provides that a defendant may move to dismiss a claim for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The court's function on a Rule 12(b)(6) motion is not to weigh potential evidence that the parties might present at trial, but to assess whether the plaintiff's complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003) (quotation marks omitted).

         “A court reviewing the sufficiency of a complaint presumes all of plaintiff's factual allegations are true and construes them in the light most favorable to the plaintiff.” Hall v. Bellmon, 935 F.2d 1106, 1109 (10th Cir. 1991). “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, 556 U.S. 662, 678 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Plausibility, in the context of a motion to dismiss, means that the plaintiff pleaded facts which allow “the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. The Iqbal evaluation requires two prongs of analysis. First, the court identifies “the allegations in the complaint that are not entitled to the assumption of truth, ” that is, those allegations which are legal conclusion, bare assertions, or merely conclusory. Id. at 679-81. Second, the Court considers the factual allegations “to determine if they plausibly suggest an entitlement to relief.” Id. at 681. If the allegations state a plausible claim for relief, such claim survives the motion to dismiss. Id. at 679.

         Notwithstanding, the court need not accept conclusory allegations without supporting factual averments. S. Disposal, Inc., v. Texas Waste, 161 F.3d 1259, 1262 (10th Cir. 1998). “[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Iqbal, 556 U.S at 678. Moreover, “[a] pleading that offers ‘labels and conclusions' or ‘a formulaic recitation of the elements of a cause of action will not do.' Nor does the complaint suffice if it tenders ‘naked assertion[s]' devoid of ‘further factual enhancement.'” Id. (citation omitted). “Where a complaint pleads facts that are ‘merely consistent with' a defendant's liability, it ‘stops short of the line between possibility and plausibility of ‘entitlement to relief.'” Id. (citation omitted).

         In evaluating a Rule 12(b)(6) motion to dismiss, the court may consider documents incorporated by reference, documents referred to in the complaint that are central to the claims, and matters of which a court may take judicial notice. Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); Gee v. Pacheco, 627 F.3d 1178, 1186 (10th Cir. 2010). Publicly filed court records, including court transcripts, are subject to judicial notice. St. Louis Baptist Temple, Inc. v. Fed. Deposit Ins. Corp., 605 F.2d 1169, 1172 (10th Cir. 1979); United States v. Ahidley, 486 F.3d 1184, 1192 n.5 (10th Cir. 2007); Trusdale v. Bell, 85 Fed.Appx. 691, 693 (10th Cir. 2003).

         ANALYSIS

         A. ...