United States District Court, D. Kansas
ROLAND D. ROSS, Plaintiff,
FNU LNU DIRECTOR, BUTLER COUNTY DETENTION CENTER, et al., Defendants.
MEMORANDUM AND ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
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'
Standard of Review
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
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).
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)
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.
Failure to Exhaust
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
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)).
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.