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McCoy v. Aramark Correctional Services

United States District Court, D. Kansas

March 16, 2018

DERON MCCOY, JR., Plaintiff,



         This 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).

         I. Background and Facts

         Plaintiff, 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 judgment.

         Plaintiff's 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.

         Around 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.

         After 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.

         Plaintiff 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.

         Plaintiff 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 laws.

         II. Legal Standards

         A. Pro Se Plaintiffs

         When a 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).

         B. Fed.R.Civ.P. 12(b)(1) Motions to Dismiss for Lack of Subject Matter Jurisdiction

         Dismissal 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).

         Motions 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

         (10th 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.” Id.

         C. Fed.R.Civ.P. 12(b)(4) Motions to Dismiss for Insufficient Process

         “When 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.

         Kansas 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).

         D. Fed.R.Civ.P. 12(b)(6) Motions to Dismiss for Failure to State a Claim

         The 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. 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, 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).

         III. Discussion

         As a 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.

         A. Defendant Rabbi M. Fellig's Motion to Dismiss

         Defendant 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 served.

         On 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 ...

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