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Rafiq v. Myers

United States District Court, W.D. Louisiana, Lake Charles Division

May 28, 2019

SHABBAR RAFIQ
v.
R. MYERS

          SUMMERHAYS JUDGE

          REPORT AND RECOMMENDATION

          KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE

         Before the court is a Motion to Dismiss [doc. 42] filed by defendant R. Myers, in response to the civil rights suit brought by plaintiff Shabbar Rafiq. See docs. 5, 9, 22, 23, 44. Rafiq opposes the motion. Doc. 48. This matter has been referred to the undersigned for review, report, and recommendation in accordance with the provisions of 28 U.S.C. § 636.

         I. Background

         Rafiq is an inmate in the custody of the Bureau of Prisons and is currently incarcerated at the Federal Correctional Institution at Oakdale, Louisiana (“FCIO”). He originally filed suit under Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999 (1971), seeking relief based on several claims, including alleged violations of his right to Equal Protection and his rights under the First and Eighth Amendments. Doc. 5. Specifically, he alleged that the conditions of confinement at FCIO amounted to cruel and unusual punishment and that FCIO officers and policies are impinging on his ability to practice his Muslim faith. Id. This court issued a memorandum order, directing Rafiq to correct deficiencies in his complaint and informing him that his religious exercise claims were likely not cognizable as a claim for damages under Bivens but could be asserted under other federal law as a claim for declaratory and injunctive relief. Doc. 7. In response Rafiq clarified that he only wished to proceed with his First Amendment, Equal Protection, and Eighth Amendment claims, and that he sought declaratory and injunctive relief, along with whatever relief the court might deem just and proper, based on those claims. Doc. 9. He subsequently amended his petition to substitute R. Myers, the current warden at FCIO, as his sole defendant and then to clarify that he intended to pursue his First Amendment claims under the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc et seq., and the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb et seq. Docs. 22, 23. After the instant Motion to Dismiss [doc. 42] was filed, he amended his complaint a final time, alleging that unnamed FCIO defendants had failed to protect him from an assault by another inmate and then by denying him adequate medical care for his injuries. Doc. 44.

         Myers now moves to dismiss the claims, arguing that declaratory and injunctive relief are unavailable under Bivens and that Rafiq has not pleaded facts to show that “the defendant's own individual actions violated the Constitution.” Doc. 42, att. 1, p. 2. It does not assert any basis for dismissing Rafiq's RLUIPA/RFRA claims or the Eighth Amendment claims alleged in the subsequent amended complaint. Rafiq opposes the motion. Doc. 48. Myers has filed no reply and his time for doing so has passed.

         II.

         Motion to Dismiss Standards

         Rule 12(b)(6) of the Federal Rules of Civil Procedure allows for dismissal of a claim when a plaintiff “fail[s] to state a claim upon which relief can be granted.” When reviewing such a motion, the court should focus on the complaint and its attachments. Wilson v. Birnberg, 667 F.3d 591, 595 (5th Cir. 2012). The court can also consider matters of which it may take judicial notice, including matters of public record. Hall v. Hodgkins, 305 Fed. App'x 224, 227 (5th Cir. 2008) unpublished) (citing Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 1017-18 (5th Cir. 1996) and Norris v. Hearst Trust, 500 F.3d 454, 461 n. 9 (5th Cir. 2007)).

         Such motions are also reviewed with the court “accepting all well-pleaded facts as true and viewing those facts in the light most favorable to the plaintiff.” Bustos v. Martini Club, Inc., 599 F.3d 458, 461 (5th Cir. 2010). However, “the plaintiff must plead enough facts ‘to state a claim to relief that is plausible on its face.'” In re Katrina Canal Breaches Litig., 495 F.3d 191, 205 (5th Cir. 2007) (quoting Bell Atl. Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007)). The court's task in evaluating a motion to dismiss under Rule 12(b)(6) is “not to evaluate the plaintiff's likelihood of success, ” but instead to determine whether the claim is both legally cognizable and plausible. Billups v. Credit Bureau of Greater Shreveport, 2014 WL 4700254, *2 (W.D. La. Sep. 22, 2014) (quoting Lone Star Fund V (U.S.), L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010)).

         III.

         Application

         Federal law provides a cause of action against any person who, under the color of state law, acts to deprive another of any right, privilege, or immunity secured by the Constitution and laws of the United States. 42 U.S.C. § 1983. A Bivens action is the counterpart for those acting under color of federal law of a suit brought under § 1983.[1] E.g., Abate v. Southern Pacific Transp. Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993). In order to hold the defendant liable, a plaintiff must allege facts to show (1) that a constitutional right has been violated and (2) that the conduct complained of was committed by a person acting under color of federal law; that is, that the defendant was a government actor. See West v. Atkins, 108 S.Ct. 2250, 2254-55 (1988).

         Myers first asserts that Rafiq's Bivens claims must be dismissed because he seeks only declaratory and injunctive relief. Doc. 42, att. 1. Rafiq clarifies that he dismissed his original claim for nominal damages because of the court's instruction that he should pursue his First Amendment claims under RLUIPA/RFRA, which permit only declaratory and injunctive relief. Doc. 48. As Rafiq has also requested whatever relief the court deems just and proper on his Bive ...


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