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Ross v. FNU Lnu Director

United States District Court, D. Kansas

April 10, 2017

ROLAND D. ROSS, Plaintiff,



         Pro se plaintiff Roland D. Ross filed this civil rights action, claiming that defendants, employees of the Butler County Detention Center, violated his rights to free exercise of religion and equal treatment under the Constitution and the Religious Freedom Restoration Act (“RFRA”). Plaintiff claims that defendants denied his request for a special Muslim diet during Ramadan, and deprived him of the right to gather during Ramadan with his fellow Islamic inmates. Defendants filed a Motion to Dismiss (Doc. 15), arguing that (1) plaintiff did not exhaust his administrative remedies; (2) plaintiff failed to allege personal participation by defendants; (3) plaintiff fails to allege a claim; and (4) defendants are entitled to qualified immunity. For the following reasons, the court grants defendants' motion.

         I. Standard of Review

         The court will grant a 12(b)(6) motion to dismiss only when the factual allegations fail to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Although the factual allegations need not be detailed, the claims must set forth entitlement to relief “through more than labels, conclusions and a formulaic recitation of the elements of a cause of action.” In re Motor Fuel Temperature Sales Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan. 2008). The allegations must contain facts sufficient to state a claim that is plausible, rather than merely conceivable. Id.

         “All well-pleaded facts, as distinguished from conclusory allegations, must be taken as true.” Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir. 1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The court construes any reasonable inferences from these facts in favor of the plaintiff. Tal v. Hogan, 453 F.3d 1244, 1252 (10th Cir. 2006). In reviewing the sufficiency of a complaint, the court determines whether the plaintiff is entitled to offer evidence to support his claims-not whether the plaintiff will ultimately prevail. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984).

         The court is mindful of the fact that plaintiff is proceeding pro se. Because of plaintiff's status, the court affords him some leniency in construing his complaint. Asselin v. Shawnee Mission Med. Ctr., Inc., 894 F.Supp. 1479, 1484 (D. Kan. 1995) (citation omitted). The court may not, however, assume the role of advocate for plaintiff simply because he is proceeding pro se. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). The court should not “construct arguments or theories for the plaintiff in the absence of any discussion of those issues.” Drake v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (citations omitted). Nor should the court “supply additional factual allegations to round out a plaintiff's complaint or construct a legal theory on a plaintiff's behalf.” Whitney v. New Mexico, 113 F.3d 1170, 1173-74 (10th Cir. 1997) (citation omitted).

         II. Factual Background

         Plaintiff is a Muslim inmate. He requested a special diet during the holy month of Ramadan. He also asked to be placed on the Ramadan list so he could observe the holy month. Although defendants did not immediately grant plaintiff's request, they eventually did. But plaintiff claims that defendants delayed resolving his grievances until most of the holy month had passed. According to plaintiff, he asked defendant FNU LNU Chaplain to be placed on a kosher/halal diet and the Ramadan list “with no regard.” He claims he appealed to defendant FNU LNU Corporal with a formal grievance, and made “an informal resolution” to defendant FNU LNU Captain, exhausting his administrative remedies. Plaintiff makes no specific allegations, however, against defendant FNU LNU Director.

         III. Discussion

         A. Failure to Exhaust

         A prisoner's failure to exhaust administrative remedies is an affirmative defense. See Jones v. Bock, 549 U.S. 199, 216 (2007) (“We conclude that failure to exhaust is an affirmative defense under the [Prison Litigation Reform Act], and that inmates are not required to specially plead or demonstrate exhaustion in their complaints.”). But the Tenth Circuit has recognized that a district court “can dismiss prisoner complaints for failure to state a claim if it is clear from the face of the complaint that the prisoner has not exhausted his remedies.” Aquilar-Avellaveda v. Terrell, 478 F.3d 1223, 1225 (10th Cir. 2007). If the complaint is silent on exhaustion, dismissal is not appropriate. Id. The Tenth Circuit has cautioned that the district court will only rarely be able to make an exhaustion ruling based solely on the allegations in the complaint. Id. (“We believe that only in rare cases will a district court be able to conclude from the face of the complaint that a prisoner has not exhausted his administrative remedies and that he is without a valid excuse.”).

         Here, defendants ask the court to dismiss plaintiff's complaint for failure to exhaust based on two “statements”: (1) the absence of a mark on the complaint indicating that plaintiff had exhausted his administrative remedies, and (2) plaintiff's statement that he had filed a grievance but had not waited for resolution before filing suit. The first of these implied statements is just that-implied, not an affirmative statement. The second of them is not conclusive. “When a district court is given the opportunity to address the exhaustion question due to affirmative but not conclusive statements in the prisoner's complaint, we follow the Fourth Circuit in holding that ‘a district court cannot dismiss the complaint without first giving the inmate an opportunity to address the issue.'” Id. (quoting Anderson v. XYZ Corr. Health Servs., 407 F.3d 674, 682 (4th Cir. 2005)).

         Defendants failed to meet their burden of proving their affirmative defense based on the face of plaintiff's complaint. A motion for summary judgment would have been a more appropriate-and likely successful-way to address the exhaustion question. The court will not dismiss plaintiff's complaint on this basis.

         B. Personal ...

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