UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JESSE RUSSELL SIMPSON,

Plaintiff,

v. Civil Action No. 1:19-cv-03173 (CJN)

FEDERAL BUREAU OF PRISONS, et al.,

Defendants.

MEMORANDUM OPINION

Jesse Russell Simpson seeks equitable relief and damages for Defendants’ alleged

violations of his religious civil rights occurring while he has been incarcerated at several federal

prison facilities. See generally Compl., ECF No. 1. Simpson alleges that he practices Orthodox

Therian Shamanism—a religion that requires him to “wear an imitation [w]olf tail” at all times

and “meditate regularly around imagery of [w]olves,” id. at 4—and that Defendants violated his

right to freely practice the religion, id. at 2–3. Simpson asserts various claims against the Bureau

of Prisons and twenty-two individual defendants, in both their official and individual capacities,

for the alleged violations.

For the reasons that follow, the Court will dismiss certain of the official-capacity claims,

transfer others to the Western District of Pennsylvania, and retain certain of the individual-

capacity claims.

I. Background

Simpson is a prisoner currently incarcerated at Federal Correctional Institution (“FCI”)

Loretto in Pennsylvania. See id. at 9–10. Prior to being transferred to FCI Loretto, Simpson was

1 housed at FCI Danbury in Connecticut, transferred to FCI Morgantown in West Virginia, and

temporarily held at Federal Transfer Center (“FTC”) Oklahoma City in Oklahoma and U.S.

Penitentiary (“USP”) Canaan in Pennsylvania. See id. at 4–10.

On October 21, 2019, Simpson filed this lawsuit alleging past and ongoing violations of

his religious civil rights under the First Amendment and the Equal Protection Clause of the

Constitution, the Religious Freedom Restoration Act (“RFRA”), 42 U.S.C. §§ 2000bb to

2000bb-4 (2018), the Religious Land Use and Institutionalized Persons Act (“RLUIPA”), id.

§§ 2000cc to 2000cc5, and Bivens v. Six Unknown Named Agents of Federal Bureau of

Narcotics,

(1971). See generally Compl. Simpson claims to practice Orthodox

Therian Shamanism, a religion “with similar beliefs to many Native American and Animism

religions.” Id. at 4. He asserts that, to comply with the tenets of this religion, he must “wear an

imitation [w]olf tail” at all times and “meditate regularly around imagery of [w]olves.” Id.

According to Simpson, failing to practice his religion in this way subjects him to “punishment of

eternal damnation.” Id.

Simpson sues twenty-three federal Defendants, including the Bureau of Prisons and

various federal employees in both their individual and official capacities1 for preventing him

from practicing Orthodox Therian Shamanism while incarcerated. See id. The same day he filed

his Complaint, Simpson moved for either a temporary restraining order (TRO) or a preliminary

1 Simpson sues the following federal employees in both their official and individual capacities: (1) Warden V. Moser; (2) Chaplain Lesh; (3) Chaplain Stadtler; (4) Captain Waughen; (5) Warden of Oklahoma City FTC; (6) Chaplain(s) of Oklahoma City FTC; (7) Warden C. Gomez; (8) Captain Fullen; (9) Unit Manager Tejera; (10) Counselor B. Plavi; (11) Case Manager Barkaszi; (12) Case Manager E. Dodrill; (13) Officer Dulla; (14) Officer Rudy; (15) Regional Director D.J. Harmon; (16) Chaplain Brian Price; (17) Warden of Canaan USP; (18) Chaplain of Canaan USP; (19) Associate Warden M. Wolever; (20) Facilities Supervisor Gialon; (21) Ian Connors; and (22) the Federal Bureau of Prisons General Counsel.

2 injunction permitting him “to purchase, make, or otherwise obtain an imitation [w]olf tail,”

permitting him “to possess books, imagery, and other literature featuring [w]olves,” and

preventing Defendants from harassing, intimidating, retaliating, or otherwise targeting him as a

result of this lawsuit. Mot. for TRO & Prelim. Inj. at 1, ECF No. 2.

Shortly after Simpson moved for the preliminary equitable relief, the U.S. Attorney’s

Office of the District of Columbia appeared on behalf of the Bureau of Prisons (“BOP”) and the

federal employees with respect to the official-capacity claims asserted against them (the

“Official-Capacity Claims”). Notice of Appearance, ECF No. 3. Service has not yet been

effected with respect to the individual-capacity claims against the individual defendants (the

“Individual-Capacity Claims”). See Simpkins v. D.C. Gov’t,

(D.C. Cir. 1997)

(adopting the rule that “defendants in Bivens actions must be served as individuals, pursuant to

Rule 4(e)”).2 In other words, the claims against BOP and the Official-Capacity Claims are the

only claims properly before the Court at this time.

On November 19, 2019, Defendants filed their opposition to Simpson’s request for

preliminary equitable relief in which they move to dismiss, or alternatively, for summary

judgment on Simpson’s claims. Mem. in Supp. of Opp’n to Mot. for TRO & Defs.’ Mot. to

Dismiss, or Alt., for Summ. J., or Alt. to Transfer (“Defs.’ Opp’n & Mot.”), ECF No. 7-1.

Simpson’s and the Defendants’ Motions are now ripe. See Mot. for TRO & Prelim. Inj.; Defs.’

2 For the reasons stated in Simpkins, the Court applies Rule 4(e) to all of Simpson’s Individual- Capacity Claims. See

(requiring defendants in Bivens actions to be served as individuals because Bivens claims against federal officials in their individual capacities “cannot be viewed as actions against the government” as they impose personal liability on the federal official and because Bivens defendants, under Department of Justice procedures, “have to shoulder the burden of requesting, in writing, that the government provide representation or, in case of a conflict of interest, pay for private counsel”).

3 Opp’n & Mot.; Mem. in Supp. of Pl.’s Mot & Reply to Def.’s Resp. (“Pl.’s Reply”), ECF

No. 13-2; Reply in Supp. of Mot. to Diss, or, Alt., for Summ. J., or Alt., to Transfer, ECF No. 15.

II. Analysis

Simpson seeks both damages and equitable relief under the Constitution, RLUIPA,

RFRA, and Bivens. Mot. for TRO & Prelim. Inj. at 1–4 (seeking a TRO and a preliminary

injunction); Compl. at 97–98 (seeking compensatory damages, punitive damages, declaratory

judgment, and a permanent injunction). Defendants move to dismiss the claims that are

presently before the Court, either under Federal Rule of Civil Procedure 12(b)(1) because the

claims are moot or Defendants have immunity from suit, under Rule 12(b)(6) because Simpson

fails to state a claim, or under Rule 12(b)(3) because venue is improper. See generally Defs.’

Opp’n & Mot.

A. RLUIPA Claims

Simpson cannot maintain RLUIPA claims against any of the Defendants. RLUIPA “does

not create a cause of action against the federal government or its correctional facilities.” Jackson

v. Fed. Bureau of Prisons, No. 06-592,

, at *3 (D.D.C. Aug. 22, 2006) (first

citing Ish Yerushalayim v. U.S. Dep’t of Corr.,

(2d Cir. 2004)); then citing

Sample v. Lappin, 424 F. Supp. 2d. 187, 192 n.3 (D.D.C. 2006); other citations omitted).

Simpson’s RLUIPA claims—including the Individual-Capacity and Official-Capacity RLUIPA

Claims— are therefore dismissed against all Defendants for failure to state a claim.

B. Simpson’s Damages Claims

1. Simpson’s RFRA Damages Claims

Simpson seeks damages under RFRA. But “RFRA does not waive the federal

government’s sovereign immunity for damages.” Webman v. Fed. Bureau of Prisons,

(D.C. Cir. 2006). The BOP and federal employees in their official capacities are

therefore immune from Simpson’s damages claims under RFRA.3

2. Simpson’s Constitutional Damages Claims

Simpson also seeks damages for alleged violations of his constitutional rights under the

First Amendment and Equal Protection Clause. Compl. at 18–27. Again, however, “[s]overeign

immunity . . . bar[s] suits for money damages against officials in their official capacity absent a

specific waiver by the government.” Clark v. Library of Cong.,

(D.C. Cir.

1984) (citations omitted). Simpson does not point to a specific waiver for damages for his

alleged constitutional injuries, see Pl.’s Reply at 12, and the Court is not aware of one. As a

result, the BOP and federal employees in their official capacities are immune from Simpson’s

constitutional damages claims.4

In sum, none of Simpson’s claims for damages presently before the Court—those against

the BOP and the Official-Capacity Claims—survive.

3 The Court notes that Simpson’s Individual-Capacity Claims under RFRA present a more complex question. The D.C. Circuit has not addressed whether RFRA permits damages actions against federal officers sued in their individual capacities. At least two Circuit Courts of Appeals have held that such suits are permitted. Tanvir v. Tanzin,

(2d Cir. 2018) (“[W]e hold that RFRA . . . authorizes a plaintiff to bring individual capacity claims against federal officials or other ‘person[s] acting under color of [federal] law.’”); Mack v. Warden Loretto FCI,

(3d Cir. 2016) (“[W]e conclude that federal officers who violate RFRA may be sued in their individual capacity for damages.”). Recently, the Supreme Court granted certiorari on this question. Tanzin v. Tanvir, No. 19-71,

, at *1 (U.S. Nov. 22, 2019). These Individual-Capacity RFRA Claims, however, are not properly before the Court until Simpson serves Defendants in their individual capacities. 4 Simpson’s Individual-Capacity Claims seeking damages for constitutional violations under Bivens are not properly before the Court until Simpson effects service on the individual Defendants.

5 C. Simpson’s Equitable Relief Claims

Simpson also seeks preliminary and permanent equitable relief from alleged violations of

RFRA, the Establishment Clause, the Free Exercise Clause, and the Equal Protection Clause.

Mot. for TRO & Prelim. Inj. at 1–4; Compl. at 97–98. Because such relief would run against the

BOP and the individual Defendants in the performance of their official duties, the Court

construes Simpson’s request for equitable relief as presenting claims only against the individual

defendants in their official capacities (in addition to BOP). See BEG Invs., LLC v. Alberti,

(D.D.C. 2014) (“Courts have concluded that there is no basis for suing a

government official for declaratory and injunctive relief in his or her individual or personal

capacity.” (citations and internal quotation marks omitted)); Hatfill v. Gonzales,

(D.D.C. 2007) (“[O]nly by acting as a government official (not as an individual acting

personally), can a public official’s compliance with a court decree remedy the governmental

action, policy[,] or practice that is being challenged.”); see also Feit v. Ward,

(7th Cir. 1989) (“The policy [the plaintiff] challenges, however, is that of the Forest Service and

is carried out by the defendants in their capacities as supervisory Forest Service employees, i.e.,

in their official capacities. Moreover, the equitable relief Feit requests—a declaration that the

policy is unconstitutional and an injunction barring the defendants from implementing the policy

in the future—can be obtained only from the defendants in their official capacities, not as private

individuals.” (citation omitted)).

Here, Simpson seeks equitable relief for alleged violations of his religious rights by the

BOP generally and by certain officials at five BOP facilities and offices relating to the specific

conditions of his confinement. See, e.g., Mot. for TRO & Prelim. Inj. at 1–4; Compl. at 1–3,

97–98. But “[n]ormally, a prisoner’s transfer or release from a prison moots any claim he might

6 have for equitable relief arising out of the conditions of his confinement in that prison.” Scott v.

District of Columbia,

(D.C. Cir. 1998) (footnote omitted). Simpson was

recently transferred to FCI Loretto, and thus BOP and those Defendants working at FCI Loretto

and BOP Headquarters are now responsible for the conditions of his confinement. See Compl. at

9–10. Simpson’s Official-Capacity Claims for equitable relief against the individual Defendants

working at FTC Oklahoma, FCI Morgantown (and the related BOP Mid-Atlantic Regional

Office), and USP Canaan are therefore moot. See Reid v. Hurwitz,

(D.C. Cir.

2019) (“Under the mootness doctrine, we cannot decide a case if ‘events have so transpired that

the decision will neither presently affect the parties’ rights nor have a more-than-speculative

chance of affecting them in the future.’” (quoting Clarke v. United States,

(D.C. Cir. 1990) (en banc))).5 Simpson’s claims against the BOP (which sets BOP general

policy) and Official-Capacity Claims against individual Defendants working at FCI Loretto

(where he is currently confined) and at BOP Headquarters (who set BOP general policy)

survive.6

D. Improper Venue

Defendants also argue that venue in the District of Columbia is improper. They ask the

Court either to dismiss the claims on this ground under Federal Rule 12(b)(3) or, in the

alternative, to transfer the claims under

(a) to the Western District of

5 Simpson does not argue that the voluntary cessation or capable of repetition, yet evading review exceptions to mootness apply here. See Reid, 920 F.3d at 832–34 (capable of repetition, yet evading review); Aref v. Lynch,

, 250–51 (D.C. Cir. 2016) (voluntary cessation). 6 These Defendants are: (1) the BOP; (2) Warden V. Moser; (3) Chaplain Lesh; (4) Chaplain Stadler; (5) Captain Waughen; (6) Ian Connors; and (7) BOP General Counsel.

7 Pennsylvania, the location of Simpson’s current place of incarceration, FCI Loretto. See Defs.’

Opp’n & Mot. at 19–20.

Because only claims against the BOP and the Official-Capacity Claims are currently

before the Court, the applicable venue statute is

(e). See Cameron v.

Thornburgh,

(D.C. Cir. 1993) (emphasizing that § 1391(e) applies to prison

officials sued in their official capacities). That provision provides:

A civil action in which a defendant is an officer or employee of the United States or any agency thereof acting in his official capacity . . . may . . . be brought in any judicial district in which (A) a defendant in the action resides, (B) a substantial part of the events or omissions giving rise to the claim occurred . . . or (C) the plaintiff resides if no real property is involved in the action.

§ 1391(e)(1). Venue is proper in this district because three Defendants against whom Official-

Capacity Claims are asserted reside here. See § 1391(e)(1)(A).

But that does not mean this is the appropriate forum for this dispute. Because a plaintiff

can manufacture venue in this District by naming high government officials and entities as

defendants, “[c]ourts in this circuit must examine challenges to . . . venue carefully.” Cameron,

. The Court may therefore transfer suits involving federal prisoners under

(a) after considering where the prisoner is incarcerated, the location of relevant

records and witnesses, and other related convenience factors. See, e.g., Pinson v. U.S. Dep’t of

Justice,

(D.D.C. 2014); Galindo v. Gonzales,

(D.D.C. 2008) (“There is no question that this case ‘might have been brought’ in the Eastern

District of Texas (where the alleged injury . . . occurred) or in the Western District of Texas

(where plaintiff is now incarcerated and where, according to plaintiff, the conspiracy to deprive

him of medical treatment continued following his transfer to the La Tuna Facility.” (citation

omitted)).

8 Here, all of Simpson’s presently remaining claims seek equitable relief regarding his

current conditions at FCI Loretto—the facility where he is currently incarcerated, where records

and witnesses involving his current treatment are located, and where the acts and omissions he

seeks to enjoin are allegedly occurring. See generally Compl. As a result, his surviving claims

are more appropriately litigated in the Western District of Pennsylvania, the district in which FCI

Loretto is located. See, e.g., Pinson, 74 F. Supp. 3d at 293–94 (transferring an incarcerated

plaintiff’s claims for equitable relief from the District of Columbia to the District of Colorado

under § 1404(a) because the plaintiff was incarcerated in Colorado and a large portion of the

records and witnesses were located there).

III. Conclusion

For the foregoing reasons, Simpson’s RLUIPA claims against all Defendants are

DISMISSED, his claims for damages against the BOP and Official-Capacity claims for damages

against the individual Defendants under RFRA and the Constitution are DISMISSED, and his

claims for equitable relief against the individual Defendants working at FTC Oklahoma, FCI

Morgantown (and the BOP Mid-Atlantic Regional Office), and USP Canaan are DISMISSED.

Simpson’s claims for equitable relief against the BOP and individual Defendants at FCI Loretto

and BOP Headquarters are TRANSFERRED to the Western District of Pennsylvania. Finally,

Simpson’s Individual-Capacity Bivens and RFRA claims remain before this Court. An order will

be entered contemporaneously with this Memorandum Opinion.

DATE: January 8, 2020 CARL J. NICHOLS United States District Judge

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