UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA ______________________________ WILLIAM G. MUNN BEY, ) ) Plaintiff, ) ) v. ) Civil Action No. 10-1334 (GK) ) DEPARTMENT OF CORRECTIONS, ) et al., ) ) Defendants. ) ______________________________)

MEMORANDUM OPINION

Plaintiff William G. Munn Bey brings this action pro se

against Defendants the Department of Corrections (“DOC”), Executive

Director of DOC Devon Brown, Deputy Director of DOC Pat Britton,1

and Warden Simon Wainwright for violations of his rights under the

First Amendment, pursuant to

, and for violations

of the Religious Freedom Restoration Act, 42 U.S.C. § 2000bb. This

matter is now before the Court on Defendants’ Motion to Dismiss

[Dkt. No. 17] and Plaintiff’s Motion for Summary Judgment on the

Pleadings [Dkt No. 21]. Upon consideration of the Motions,

Oppositions, supplemental briefs, and the entire record herein, the

Court concludes that Defendants’ Motion to Dismiss is granted and

Plaintiff’s Motion for Summary Judgment is denied.

1 To the extent that they are sued in their official capacities, Devon Brown and Pat Britton are replaced by Thomas N. Faust and Carolyn Cross pursuant to Federal Rule of Civil Procedure 25(d). I. Background2

Munn Bey is currently a prisoner at the Federal Correctional

Institution (“FTC”), in Talladega, Alabama. At the time the

relevant events transpired, however, Munn Bey was held at the

District of Columbia Jail.

Munn Bey is a practicing Muslim and member of the Moorish

Science Temple of America. Munn Bey observes Friday as a Holy Day

and, until sometime in the fall of 2009, Munn Bey and fellow

members of the Moorish Science Temple of America were permitted to

hold services every Friday. However, at some time prior to October

7, 2009, Munn Bey was informed that the Moorish Science Temple of

America would no longer be allowed to hold services each Friday,

but would instead have to hold their services every other Monday,

in order to accommodate conflicting demands on limited space. At

the same time, the Sunni Muslim community was permitted to continue

their Friday “Jumah” services and to hold two other classes on

Fridays.

On October 7, 2009, Munn Bey sent an inmate request slip or

otherwise asked for assistance to address the decision not to

permit his group to hold services on Fridays. See Defs.’ Mot., Ex.

2 For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Aktieselskabet AF 21. November 2001 v. Fame Jeans Inc.,

(D.C. Cir. 2008); Shear v. Nat’l Rifle Ass’n of Am.,

(D.C. Cir. 1979). Therefore, unless otherwise noted, the facts set forth herein are taken from the Complaint.

-2- 2 [Dkt. No. 17-2]. On January 7, 2010, Munn Bey filed an inmate

complaint seeking informal resolution.

In response, the D.C.

Jail’s Chaplain met with Munn Bey, but “Brother Munn did not accept

explanation relative to scheduled day for MSOA religious

observance.”

On a form dated March 5, 2010, Munn Bey filed an

“Appeal Level 2" directly to the Director of the Department of

Corrections. On that form, Munn Bey wrote, “On 2-5-2010, my Appeal

Level 1 was filed, On 1-19-2010 the Warden’s Administrative Remedy

neither answered.”

Whether these actions sufficed to properly

exhaust Munn Bey’s administrative remedies is in dispute.

On April 2, 2010, Munn Bey was removed from the D.C. Jail and

transferred to the Youngstown Eastern Ohio Correctional Center.

Five weeks later, he was sent to FTC.

On August 9, 2010, Munn Bey filed this Complaint, alleging

that “he was denied the right to freely exercise his religion under

the First Amendment of The Federal Constitution,” and that

Defendants violated the Religious Freedom Restoration Act, by

refusing to allow Friday services and by transferring him to a

prison without access to a law library in retaliation for his

grievances. Compl. at 1, 6, 7 [Dkt. No. 1]. On January 12, 2011,

Defendants filed a Motion to Dismiss (“Defs.’ Mot.”). On February

16, 2011, Munn Bey filed an Opposition [Dkt. No. 20]. On June 21,

2011, Munn Bey filed a Motion for Summary Judgment. On July 18,

2011, Defendants filed an Opposition [Dkt. No. 26]. On December 12,

-3- 2011, and at the direction of the Court, Defendants filed a

supplemental praecipe further explaining the factual basis for

their argument that Munn Bey failed to exhaust his administrative

remedies [Dkt. No. 30]. On December 23, 2011, Munn Bey filed a

reply to Defendants’ Praecipe [Dkt. No. 31].

II. Standard of Review

To survive a motion to dismiss under Rule 12(b)(6), a

plaintiff need only plead “enough facts to state a claim to relief

that is plausible on its face” and to “nudge[ ] [his or her] claims

across the line from conceivable to plausible.” Bell Atlantic Corp.

v. Twombly,

(2007). “[O]nce a claim has been

stated adequately, it may be supported by showing any set of facts

consistent with the allegations in the complaint.”

.

Under the Twombly standard, a “court deciding a motion to dismiss

must not make any judgment about the probability of the plaintiffs’

success . . . [,] must assume all the allegations in the complaint

are true (even if doubtful in fact) . . . [, and] must give the

plaintiff the benefit of all reasonable inferences derived from the

facts alleged.” Aktieselskabet AF 21. November 2001 v. Fame Jeans

Inc.,

(D.C. Cir. 2008) (internal quotation marks and

citations omitted). A complaint will not suffice, however, if it

“tenders ‘naked assertion[s]’ devoid of ‘further factual

enhancement.’” Ashcroft v. Iqbal,

(2009)

(quoting Twombly,

) (alteration in Iqbal).

-4- The allegations of a pro se complaint are held “to less

stringent standards than formal pleadings drafted by lawyers.”

Haines v. Kerner,

(1972). Nonetheless, “[e]ven

given the special liberality with which we consider pro se

complaints, we need not accept inferences unsupported by the facts

alleged in the complaint or ‘legal conclusions cast in the form of

factual allegations.’” Kaemmerling v. Lappin,

(D.C. Cir. 2008) (quoting Henthorn v. Dep’t of Navy,

(D.C. Cir. 1994)).

III. Analysis

Defendants advance ten separate grounds for dismissal. Defs.’

Mot. 1-2. However, it is clear upon review of certain of these

arguments and the Complaint itself that the case must be dismissed

for want of subject matter jurisdiction. Munn Bey has requested

three forms of relief: (1) punitive damages against Defendants

Brown and Britton in their personal and official capacities; (2)

compensatory damages for stress and emotional injuries against

Defendants Brown, Britton, and Wainwright in their personal and

official capacities; and (3) injunctive relief.3 Compl. at 7-8.

3 Munn Bey also requests a declaratory judgment. Compl. at 7. However, “it is a ‘well-established rule that the Declaratory Judgment Act is not an independent source of federal jurisdiction. Rather, the availability of [declaratory] relief presupposes the existence of a judicially remediable right.’” Ali v. Rumsfeld,

(D.C. Cir. 2011) (quoting C & E Servs., Inc. of Washington v. D.C. Water & Sewer Auth.,

(D.C. Cir. 2002) (alteration in Ali)). Therefore, Munn Bey’s request for (continued...)

-5- Because neither punitive nor compensatory damages are available and

the claim for injunctive relief is moot, the Complaint must be

dismissed. See Kaur v. Chertoff,

(D.C. Cir.

2008) (“If this case is moot, we are barred from reviewing it under

Article III’s case or controversy requirement and therefore lack

subject matter jurisdiction.” (citing N.C. v. Rice,

(1971))).

A. Punitive Damages Are Unavailable

1. Official Capacity Punitive Damages Are Unavailable

Defendants argue that Munn Bey’s claim for punitive damages

should be struck from the Complaint. Defs.’ Mot. 7-8. Defendants

are absolutely correct that punitive damages are not available

against the District of Columbia. See City of Newport v. Fact

Concerts, Inc.,

, 260 n.21, 271 (1980) (“The general

rule today is that no punitive damages are allowed unless expressly

authorized by statute.”); Daskalea v. District of Columbia,

(D.C. Cir. 2000); Reed v. District of Columbia,

, 166 n.3 (D.D.C. 2007); Finkelstein v. District

of Columbia,

(D.C. 1991) (en banc). Because “[a]

3 (...continued) declaratory judgment will not rescue his Complaint.

Additionally, it should be noted that the Department of Corrections is not a suable entity. Chandler v. District of Columbia, Civil Action No. 07-2010 (PLF),

, at *1 (D.D.C. Aug. 28, 2009); Arnold v. Moore,

(D.D.C. 1997). For this reason, as well as the reasons explained below, DOC is dismissed from the action.

-6- section 1983 suit for damages against municipal officials in their

official capacities is . . . equivalent to a suit against the

municipality itself,” Munn Bey’s claim for punitive damages against

Defendants Brown and Britton in their official capacities must be

dismissed. Atchinson v. District of Columbia,

(D.C. Cir. 1996); Robinson v. District of Columbia,

(D.D.C. 2005).

2. Personal Capacity Punitive Damages Are Unavailable

Defendants also argue that Munn Bey has failed to adequately

plead a claim against Britton, Brown, or Wainwright in their

personal capacities. Defs.’ Mot. 24. Munn Bey claims that he should

receive punitive damages from Defendants Britton and Brown for

retaliating against him for making use of the administrative

complaint system.4 Compl. at 8.

“An individual may be personally liable under Section 1983

only if it is shown that he or she directly participated in the

wrongful acts.” Waker v. Brown,

(D.D.C.

2010); see also Cameron v. Thornburgh,

(D.C.

Cir. 1993); Elkins v. District of Columbia,

, 64

4 Munn Bey also seeks punitive damages for Britton and Brown’s failure to respond to his filed grievances. Compl. at 8. Nowhere in the Complaint, however, does Munn Bey explain how Britton and Brown’s failure to personally respond to his grievances is a constitutional violation. Doe by Fein v. District of Columbia,

(D.C. Cir. 1996) (holding that a plaintiff cannot “allege a procedural due process violation without even suggesting what sort of process is due”).

-7- (D.D.C. 2009). Moreover, “[p]ublic officials are not vicariously

liable for the actions of their subordinates; respondeat superior

liability does not apply in § 1983 cases.” Elkins,

(citing Haynesworth v. Miller,

(D.C. Cir.

1987)). Further, “[a] supervisor who merely fails to detect and

prevent a subordinate's misconduct . . . cannot be liable for that

misconduct.” Int’l Action Ctr. v. United States,

(D.C. Cir. 2004).

First, Munn Bey has made no factual allegations demonstrating

retaliation. Munn Bey simply alleges, with no supporting facts,

that he “was removed from the D.C. Jail general population upon a

Federal transfer that was requested in retaliation for exercising

his Constitutional rights.” Compl. at 6. The Court “need not accept

inferences unsupported by the facts alleged in the complaint or

legal conclusions cast in the form of factual allegations.”

Kaemmerling,

(internal quotations omitted); Iqbal,

(complaint will not suffice if it “tenders ‘naked

assertion[s]’ devoid of ‘further factual enhancement’” (quoting

Twombly,

) (alteration in Iqbal)). Therefore, Munn

Bey’s allegations of retaliation are insufficient to state a claim.

Second, even if Munn Bey had properly alleged retaliation

against the District of Columbia, he has made no allegation that

any of the named Defendants personally retaliated against him. Munn

Bey fails to allege that Britton or any of the Defendants actually

-8- had any involvement with his transfer. Munn Bey does claim that

“Ms. Pat Britton has a history of transferring Department of

Corrections inmates to the Youngstown Eastern Ohio Correctional

Center.” Compl. at 6. But a history or a relationship with

Youngstown Eastern Ohio Correctional Center does not show that

Britton had any input in Munn Bey’s transfer or that the transfer

to Youngstown was retaliatory. Therefore, Munn Bey has failed to

make sufficient allegations of personal liability. Waker v. Brown,

.

In sum, Munn Bey has failed to state a claim against

Defendants in their individual capacities. Consequently, Munn Bey’s

claim for punitive damages is dismissed.

B. Damages for Stress and Emotional Injuries Are Unavailable

Defendants contend that Munn Bey’s “claims of ‘stress and

emotional injuries’ warrant dismissal, as he failed to plead or

prove a physical injury.” Defs.’ Mot. 9 (quoting Compl. at 8).

Pursuant to the Prison Litigation Reform Act of 1995, “[n]o Federal

civil action may be brought by a prisoner confined in a jail,

prison, or other correctional facility, for mental or emotional

injury suffered while in custody without a prior showing of

physical injury.” 42 U.S.C. § 1997e(e); see Duncan v. Williams, No.

01-7123,

, at *1 (D.C. Cir. Apr. 10, 2002); Davis v.

District of Columbia,

(D.C. Cir. 1998); Banks

v. York,

(D.D.C. 2007). Because Munn Bey

-9- has not alleged any physical injury, his claims for damages based

on stress or emotional injury are dismissed.

C. Injunctive Relief Is Unavailable

Finally, Munn Bey seeks an injunction ordering Defendants to

permit his religious group, the Moorish Science Temple of America,

to hold Holy Day services on Fridays, to improve the administrative

grievance system, and to arrange for the Moorish Science Temple to

have religious material at the D.C. Jail. Compl. at 8. However, “a

prisoner’s transfer or release from a prison moots any claim he

might have for equitable relief arising out of the conditions of

his confinement in that prison.” Scott v. District of Columbia,

(D.C. Cir. 1998); Burke v. Lappin, ___F. Supp. 2d___,

Civil Action No. 11-0717 (CKK),

(D.D.C. Oct.

21, 2011); Webman v. Fed. Bureau of Prisons, Civil Action No. 03-

0172 (CKK),

, at *3 (D.D.C. Jan. 4, 2005).

As the Seventh Circuit Court of Appeals explained in finding

that the transfer of prisoners to another prison mooted their claim

under the free exercise clause, “unaccompanied by any continuing,

present injury or real and immediate threat of repeated injury,

[plaintiffs’] past exposure to illegal conduct at [their former

prison] does not show a pending case or controversy regarding

injunctive relief, and we must vacate as moot that portion of their

prayer for relief.” Young v. Lane,

(7th Cir.

1991) (citing O'Shea v. Littleton,

(1974)).

-10- Because Munn Bey has been transferred to FTC, his claim for

injunctive relief to remedy harms allegedly ongoing at the D.C.

Jail is moot.5

Therefore, Munn Bey’s claim for injunctive relief must be

dismissed for lack of subject matter jurisdiction. Fed. R. Civ. P.

12(h)(3) (“If the court determines at any time that it lacks

subject-matter jurisdiction, the court must dismiss the action.”);

Theodore Roosevelt Conservation P’ship v. Salazar,

(D.C. Cir. 2011) (“If it becomes ‘impossible for the court to grant

any effectual relief whatever to a prevailing party’ on a

particular claim, that claim must be dismissed.” (quoting Church of

Scientology v. United States,

(1992))); Kaur,

(“If this case is moot, we are barred from reviewing it

under Article III’s case or controversy requirement and therefore

lack subject matter jurisdiction.”); Scott,

(plaintiff’s release from confinement renders case moot in absence

of claim for damages).

5 Although Defendants did not raise the mootness argument in their papers, “a district court may dismiss a complaint sua sponte . . . pursuant to Fed. R. Civ. P. 12(h)(3) when, as here, it is evident that the court lacks subject-matter jurisdiction.” Evans v. Suter, No. 09-5242,

, at *1 (D.C. Cir. June 28, 2010); Hurt v. U.S. Court of Appeals for the D.C. Cir.,

(D.C. Cir. 2008) (affirming district court’s dismissal of pro se complaint because “[i]t was proper for the district court to analyze its own jurisdiction sua sponte and dismiss the case for lack of jurisdiction.”); see Fed. R. Civ. P. 12(h)(3) (“If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.”).

-11- IV. CONCLUSION

Because, for the reasons stated above, the claims for damages

have been dismissed and the claim for injunctive relief has been

dismissed as moot, Defendants’ Motion to Dismiss is granted and

Plaintiff’s Motion for Summary Judgment is denied.

/s/ March 16, 2011 Gladys Kessler United States District Judge

Copies to: attorneys on record via ECF

and

William G. Munn Bey R03099-000 Gilmer Federal Correctional Institution Inmate Mail/Parcels P.O. BOX 6000 Glenville, WV 26351

-12-