United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE
matter comes before the court upon defendants Aramark
Correctional Services (“Aramark”), Paul Church,
Julie Dockendorff, and Rabbi M. Fellig's Motion to
Dismiss for Failure to State a Claim (Doc. 57); defendant
Patricia Berry's Motion to Dismiss (Doc. 59); defendant
Cheryl Allen's Motion to Dismiss (Doc. 70); defendant
Allen's Motion for Extension of Time (Doc. 76); and
plaintiff's Motion Requesting Class Certification and
Motion to Appoint Counsel (Doc. 80).
Background and Facts
proceeding pro se, is currently incarcerated at El Dorado
Correctional Facility in El Dorado, Kansas
(“EDCF”). Plaintiff filed this case on January
27, 2016 and was granted leave to proceed in forma pauperis.
On August 31, 2016, the court entered an order requiring the
Kansas Department of Corrections (“KDOC”) to
review plaintiff's complaint, and to file a
Martinez Report. (Doc. 17.) KDOC filed its report on
February 28, 2017. (Doc. 41.) The motions before the court
are motions to dismiss. Because the court resolves the issues
in this case relying only on the pleadings, without
considering the Martinez Report, it will not convert
the pending motions to dismiss to motions for summary
Third Amended Complaint, filed June 14, 2017, claims he was
denied his First Amendment right to practice his religion
pursuant to 42 U.S.C. § 1983, when he was not provided
modified Kosher diet meals in accordance with his religious
beliefs. (Doc. 56.) Plaintiff claims defendants violated his
rights by failing to implement a policy or practice to
purchase and serve Kosher meals to him as required by his
religion, also citing the Religious Land Use and
Institutionalized Persons Act of 2000 (“RLUIPA”),
42 U.S.C. §§ 2000cc-2000cc-5.
March 13, 2014, while incarcerated at Lansing Correctional
Facility (“LCF”), plaintiff spoke with a chaplain
who said he could not confirm to plaintiff that the Certified
Religious Diet (“CRD”) at LCF was certified
Kosher. Plaintiff includes an Affidavit claiming that all
Aramark facilities only provide the CRD diet, not a truly
certified Kosher diet.
the chaplain told plaintiff that he could not confirm that
the CRD meals were Kosher, plaintiff started his own
investigation. Plaintiff determined that the meal plans for
all religious inmates are sometimes marked with a certified
Kosher symbol but not always. When he was called to the
kitchen to do some electrical work, plaintiff observed that
all meals are prepared in the same kitchen, transported
together, stacked together, placed in the same location after
eating, washed in the same machine, and stored in the same
place. Plaintiff explains that he was previously a Kosher
cook when serving a prior sentence at Leavenworth
Correctional Facility. There, all Kosher meals were stored,
cooked, and served sealed. Plaintiff claims that defendants
knowingly and intentionally failed to provide him with Kosher
meals, depriving him of his constitutional rights.
claims that the First Amendment guarantees him the right to
have his meals prepared and served in conformity with the
Jewish dietary laws. He wants his meals to be served still
sealed (like “TV dinners”), pre-packaged, and
visibly marked Kosher. These meals should be prepared in a
separate room from the general prison population's meals,
and any utensils or tools used to prepare them must be kept
and cleaned separately.
seeks $200 in damages, $77, 000 in punitive damages, costs of
this suit, as well as a declaration from the court that
defendants are violating plaintiff's rights, and a
permanent injunction directing the KDOC and defendants to
provide fully Kosher meals in conformity with Jewish dietary
Pro Se Plaintiffs
plaintiff proceeds pro se, the court construes his filings
liberally and holds them to less stringent standards than
pleadings filed by lawyers. Barnett v. Corr. Corp of
Am., 441 F. App'x 600, 601 (10th Cir. 2011). Pro se
plaintiffs are nevertheless required to follow the federal
and local rules of practice and the court does not assume the
role of advocating for plaintiff. United States v.
Porath, 553 F. App'x 802, 803 (10th Cir. 2014).
Fed.R.Civ.P. 12(b)(1) Motions to Dismiss for Lack of Subject
pursuant to Fed. R. of Civ. P. 12(b)(1) is appropriate when
the court lacks subject matter jurisdiction over a claim.
Plaintiff claims that subject matter jurisdiction exists and
has the burden of establishing it. Port City Props. v.
Union Pac. R.R. Co., 518 F.3d 1186, 1189 (10th Cir.
2008). Because federal courts are courts of limited
jurisdiction, there is a strong presumption against federal
jurisdiction. Sobel v. United States, 571 F.Supp.2d
1222, 1226 (D. Kan. 2008).
for lack of subject matter jurisdiction generally take one of
two forms: (1) a facial attack on the sufficiency of the
complaint's jurisdictional allegations; or (2) a
challenge to the actual facts upon which subject matter
jurisdiction is based. Holt v. United States, 46
F.3d 1000, 1002-03
Cir. 1995). For a facial challenge, the court accepts the
plaintiff's factual allegations regarding jurisdiction as
true. Id. at 1002. But for a factual attack, the
court does not presume that the plaintiff's allegations
are true. Id. at 1003. Rather, “[a] court has
wide discretion to allow affidavits, other documents, and a
limited evidentiary hearing to resolve disputed
jurisdictional facts under Rule 12(b)(1). In such instances,
a court's reference to evidence outside the pleadings
does not convert the motion to a Rule 56 motion.”
Fed.R.Civ.P. 12(b)(4) Motions to Dismiss for Insufficient
a defendant moves to dismiss on the basis of insufficient
service of process, the burden shifts to the plaintiff to
make a prima facie showing that he served process
properly.” Moore v. Univ. of Kan., No.
17-2359-JAR-GLR, 2017 WL 4422649, at *1 (D. Kan. Oct. 5,
2017) (quoting Schwab v. State of Kansas, No.
16-4033-DDC-KGS, 2016 WL 4039613, at *1 (D. Kan. July 28,
2016) (citing Fisher v. Lynch, 531 F.Supp.2d 1253,
1260 (D. Kan. 2009))). The court “may consider any
affidavits and other documentary evidence submitted by the
parties and must resolve any factual doubt in a
plaintiff's favor.” Id. Fed. R. Civ. P.
4(e) provides that an individual may be served following
state law for serving a summons . . . delivering a copy of
the summons and of the complaint to the individual personally
. . . leaving a copy at the individual's dwelling or
usual place of abode with someone of suitable age and
discretion who resides there . . . or delivering a copy of
each to an agent authorized by appointment or by law to
receive service of process.
law provides that individual service may be accomplished by
serving the individual or by serving an agent authorized by
appointment or by law to receive service of process. . . .
Service by return receipt delivery shall be addressed to an
individual at the individual's dwelling house or usual
place of abode and to an authorized agent at the agent's
usual or designated address. If service by return receipt
delivery to the individual's dwelling house or usual
place of abode is refused or unclaimed, the sheriff, party or
party's attorney seeking service may complete service by
certified mail, restricted delivery, by serving the
individual at a business address after filing a return on
service stating the return receipt delivery to the individual
at such individual's dwelling house or usual place of
abode has been refused or unclaimed and a business address is
known for such individual. Kan. Stat. Ann. § 60-304(a).
Fed.R.Civ.P. 12(b)(6) Motions to Dismiss for Failure to State
court will grant a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) 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.
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, 681
(2009). The court construes any reasonable inferences from
these facts in plaintiff's favor. Tal v. Hogan,
453 F.3d 1244, 1252 (10th Cir. 2006).
preliminary matter, the court notes that defendants Sheri
Burns and Randy Singletary were dismissed without prejudice
from this action on August 31, 2016 in the Honorable Sam A.
Crow's Martinez Report Order (Doc. 17). The
court notes that both Burns and Singletary are still listed
in plaintiff's Third Amended Complaint, but doing so was
insufficient to reinstate claims against them. They were not
served and are no longer parties to this action. Plaintiff
also claims that KDOC took certain actions and might be
trying to assert claims against it. To the extent plaintiff
is trying to do so, KDOC was never served, is not a party to
this lawsuit, and has sovereign immunity.
Defendant Rabbi M. Fellig's Motion to Dismiss
Fellig moves to dismiss the claims against him pursuant to
Fed.R.Civ.P. 12(b)(2) for lack of personal jurisdiction and
12(b)(4) for insufficient process. The court need not
determine whether it has personal jurisdiction over defendant
Fellig because the court finds that he was not properly
August 31, 2016, the court issued a summons for “M.
Gilly, ” now known to be Rabbi M. Fellig. The summons
and plaintiff's second amended complaint were served upon
“M. Gilly, Rabbi, Aramark Religious Authority, c/o The
Corporation Company, Inc., Resident Agent” in Topeka,
Kansas. (Doc. 25.) On September 13, 2016 the summons was
returned executed. (Id.) Service was accepted by
someone named Samantha Milner. Plaintiff claims that service
was sufficient ...