UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Jonathan A. Perfetto

v. Civil No. 14-cv-556-PB Opinion No.

Jonathan Plumpton, et al.

MEMORANDUM AND ORDER

Jonathan Perfetto, proceeding pro se, has brought claims

for damages against several current and former Hillsborough

County House of Corrections (“HCHC”) employees, based on the

Religious Land Use and Institutionalized Persons Act (“RLUIPA”).

He has sued Captain Marc Cusson, Superintendent David Dionne,

former Superintendent James O’Mara, and two Jane Doe mailroom

clerks, all in their official capacities.

Defendants Cusson, Dionne, and O’Mara have moved, pursuant

to Federal Rule of Civil Procedure 12(b)(6), to dismiss

Perfetto’s RLUIPA claims.1 They argue that Perfetto’s claims

fail because the statute does not permit inmates to recover

damages on their RLUIPA claims. They base their argument

primarily on cases from other jurisdictions in which courts

1 The Jane Doe defendants have not been served in this matter, and the pending motion to dismiss was not filed on their behalf. rejected RLUIPA claims on sovereign immunity grounds. Because I

determine that this case law is either distinguishable or

unpersuasive, I deny defendants’ motion.

I. BACKGROUND

Perfetto, a Jehovah’s Witness and former HCHC inmate,

alleges that the defendants violated RLUIPA by enforcing a

prison policy that barred Perfetto from distributing religious

materials to other inmates. The defendants’ actions, Perfetto

claims, substantially burdened his religious practice of

“preach[ing] the good news of God’s Kingdom.” Perfetto v.

Alexis, No. 12-cv-393-JL, Doc. No. 11 at 9. After preliminary

review, Magistrate Judge Johnstone determined that Perfetto had

adequately alleged a substantial burden on his religious

practice. She therefore directed service of Perfetto’s RLUIPA

claims on defendants Cusson, Dionne, O’Mara, and the two

mailroom clerks, all in their official capacities.2 See Doc. No.

2 Perfetto initially filed his RLUIPA claims in Perfetto v. Alexis, No. 12-cv-393-JL (“Perfetto I”), a case that was voluntarily dismissed without prejudice. I have allowed Perfetto’s current claims to proceed in this action and incorporate by reference the facts supporting the claims asserted in Perfetto I. In Perfetto I, Perfetto brought additional RLUIPA claims, including individual capacity claims, and sought injunctive relief. The court’s prior orders disposed of those claims, and I do not address them here. 2 34 at 1-2.

II. STANDARD OF REVIEW

To survive a Rule 12(b)(6) motion, a plaintiff must allege

sufficient facts to “state a claim to relief that is plausible

on its face.” Ashcroft v. Iqbal,

(2009)

(quoting Bell Atl. Corp. v. Twombly,

(2007).

A claim is facially plausible if it provides “factual content

that allows the court to draw the reasonable inference that the

defendant is liable for the misconduct alleged.”

This

plausibility standard “asks for more than a sheer possibility

that a defendant has acted unlawfully,”

but “simply calls

for enough fact to raise a reasonable expectation that discovery

will reveal evidence” of wrongdoing. Twombly,

.

I employ a two-step approach in deciding a Rule 12(b)(6)

motion. See Ocasio-Hernandez v. Fortuno-Burset,

(1st Cir. 2011). First, I screen the complaint for statements

that “merely offer legal conclusions couched as fact or

threadbare recitals of the elements of a cause of action.”

Perfetto’s current complaint also included an excessive force claim against defendant Jonathan Plumpton. That claim has been voluntarily dismissed with prejudice, and Plumpton has been dropped as a defendant. See Doc. Nos. 62, 63. Accordingly, only Perfetto’s RLUIPA damage claims remain. 3 (citations, internal punctuation, and alterations omitted). I

then accept as true all non-conclusory factual allegations and

the reasonable inferences drawn therefrom, and determine whether

the claim is plausible.

Because Perfetto is proceeding pro

se, I construe his pleadings liberally. See Erickson v. Pardus,

(2007).

III. ANALYSIS

Defendants base their motion to dismiss almost exclusively

on cases in which courts dismissed plaintiffs’ RLUIPA damages

claims on sovereign immunity grounds.3 See Doc. No. 48-1 at 4-9.

Accordingly, I treat defendants as though they were asserting a

sovereign immunity defense. Before turning to that argument,

however, I address two threshold issues: (1) whether RLUIPA’s

text permits a damage remedy, and (2) if so, whether plaintiffs

can bring RLUIPA damage claims against county employees in their

official capacities. I begin with the statutory text.

RLUIPA requires courts to apply strict scrutiny to prison

3 Defendants argue in passing that Perfetto “has also failed to establish the existence of” a substantial burden on his religious practice. See Doc. No. 48-1 at 9. To the extent that the defendants are arguing that Perfetto has not alleged sufficient facts to support his RLUIPA claims, the defendants have not adequately developed that argument. I therefore decline to dismiss Perfetto’s claims on that basis. 4 policies that substantially burden an inmate’s religious

exercise. See Spratt v. R.I. Dept. of Corrs.,

, 42

n.14 (1st Cir. 2007) (noting RLUIPA’s “statutory requirement

that we apply strict scrutiny”). Section 3 of RLUIPA provides

that “[n]o government shall impose a substantial burden on the

religious exercise” of an institutionalized person, unless the

government can show that the burden “is in furtherance of a

compelling governmental interest” and “is the least restrictive

means of furthering” that interest. 42 U.S.C. § 2000cc–1(a);

Sossamon v. Texas,

(2011). Section 3 applies

“in any case” in which “the substantial burden is imposed in a

program or activity that receives Federal financial assistance.”

§ 2000cc–1(b)(1); Sossamon,

. “RLUIPA

provides greater protection to inmates' free-exercise rights

than does the First Amendment.” Kuperman v. Wrenn,

(1st Cir. 2011); see also 42 U.S.C. § 2000cc–3(g) (requiring

that the statute be “construed in favor of a broad protection of

religious exercise”).

RLUIPA creates an express private right of action. “A

person may assert a violation of [RLUIPA] as a claim or defense

in a judicial proceeding and obtain appropriate relief against a

government.” 42 U.S.C. § 2000cc–2(a) (emphasis added). Here,

5 “government” includes states, counties, municipalities, their

instrumentalities and officers, and persons acting under color

of state law. See § 2000cc–5(4)(A); Sossamon,

.

RLUIPA thus allows inmates to recover “appropriate relief,”

42 U.S.C. § 2000cc–2(a), but does not specify whether, and when,

money damages are “appropriate.” When, however, Congress

creates a private right of action to enforce a federal law,

damages are presumptively available as an “appropriate” remedy,

unless Congress has clearly expressed its intention that damages

are not recoverable. See Franklin v. Gwinnett Cty. Pub. Schs.,

(1992) (holding that compensatory damages are

available under Title IX’s implied right of action, because

Congress did not express an intention to limit available

remedies); Centro Familiar Cristiano Buenas Nuevas v. City of

Yuma,

(9th Cir. 2011) (allowing RLUIPA

damage claim to proceed against municipality, because RLUIPA

“speaks without any ‘clear direction’ excluding damages

relief”); Opulent Life Church v. City of Holly Springs, Miss.,

(5th Cir. 2012) (same). By authorizing

plaintiffs to recover “appropriate relief,” RLUIPA “contains no

indication, much less clear direction, that it intends to

exclude a money damages remedy.” Opulent Life Church,

. Accordingly, RLUIPA’s text allows plaintiffs to pursue

damages claims against defendants who are subject to liability

under the Act. See

RLUIPA was enacted pursuant to the Constitution’s spending

and commerce clauses. See Sossamon,

. As a

result, although the First Circuit has reserved judgment on the

issue, other courts have determined that RLUIPA does not permit

damage claims against defendants who have been sued in their

individual capacities, and do not themselves receive federal

funds. See Kuperman v. Wrenn,

(1st Cir.

2011) (reserving judgment on the issue and describing case law

in other circuits). Perfetto has avoided this issue by suing

the defendants only in their official capacities.

An official-capacity suit is “in all respects other than

name, to be treated as a suit against the entity.” Kentucky v.

Graham,

(1985); see Surprenant v. Rivas,

(1st Cir. 2005); Wood v. Hancock County Sheriff's

Dep't,

, 58 n. 1 (1st Cir. 2003). Put another way,

“official-capacity suits generally represent only another way of

pleading an action against an entity of which an officer is an

agent.” Monell v. New York City Dep't of Social Servs.,

, 690 n.55 (1978). Accordingly, “a string of Supreme

7 Court cases holds that a suit against a government officer in

his or her official capacity binds the agency or other

governmental entity, not the officer personally.” Am.

Policyholders Ins. Co. v. Nyacol Prods., Inc.,

(1st Cir. 1993). Therefore, for the purposes of analysis,

I treat Perfetto’s suit in this case as a suit against the

county itself.

Defendants do not take issue with the foregoing analysis.

Nor have they argued that Hillsborough County is not subject to

suit under RLUIPA because it does not receive federal funds.

Instead, they rely on cases from other jurisdictions in which

courts determined that sovereign immunity bars RLUIPA claims.

Defendants principally cite cases in which courts dismissed

RLUIPA damages claims on sovereign immunity grounds against

state, rather than county, employees. See Doc. No. 48-1 at 8-9.

Sovereign immunity does not affect Perfetto’s claim here,

however, because the Supreme Court and First Circuit have

consistently held that counties, unlike states, do not enjoy

sovereign immunity. See Metcalf & Eddy, Inc. v. Puerto Rico

Aqueduct & Sewer Auth.,

(1st Cir. 1993)

(“[P]olitical subdivisions of a state, such as municipalities

and counties, do not lie within the Eleventh Amendment's

8 reach.”); Kelley Bey v. Keen, No. 3:13-CV-1942,

,

at *13 (M.D. Pa. July 17, 2014) (citing Mt. Healthy City Sch.

Dist. Bd. of Educ. v. Doyle,

(1977)).

Defendants also note that some courts have dismissed RLUIPA

claims for damages against county employees who were sued in

their official capacities. See Doc. No. 48-1 at 9 (citing Scott

v. Brown, No. 1:11-CV-2514-TWT-JFK,

, at *4 (N.D.

Ga. Jan. 31, 2012)). Yet, as the defendants concede, these

courts often acted without acknowledging the general rule that

counties are not entitled to sovereign immunity. See Doc. No.

48-1 at 8 (“Admittedly, a number of these cases have either

failed to set forth the distinction [between states and

counties] or have limited their logic to the application of the

Eleventh Amendment . . . .”); see also Amos v. Karol, No. 1:14-

CV-63 SNLJ,

, at *2 (E.D. Mo. Feb. 9, 2016); Sam

v. Fort Bend Cty. Sheriff's Office, No. CIV.A. H-12-3425,

, at *7 (S.D. Tex. Feb. 18, 2014); Sleighter v. Kent

Cty. Jail Admin., No. 1:12-CV-763,

, at *5 (W.D.

Mich. Sept. 20, 2013); Schecter v. Bucks Cty., No. CIV.A. 11-

1617,

, at *3 (E.D. Pa. July 13, 2011). These

9 decisions are therefore unpersuasive.4

Finally, the Supreme Court’s interpretation of the term

“appropriate relief” in Sossamon v. Texas does not compel a

different result. In Sossamon, the Court held that RLUIPA’s

authorization of “appropriate relief” is not “the unequivocal

expression of state consent” required to waive sovereign

immunity.

. Sossamon is thus “grounded on the

line of Eleventh Amendment authority requiring ‘clear

expression’ to abrogate the sovereign immunity of states from

damages claims.” Centro Familiar Cristiano Buenas Nuevas,

; see Sossamon,

; Lane v. Pena,

(1996) (explaining that a waiver of sovereign

immunity “will be strictly construed, in terms of its scope, in

4 In contrast, where courts acknowledge that sovereign immunity does not protect county officials, they often conclude that RLUIPA damage claims may be viable against county employees. See, e.g., Pabon v. Cheshire Cty. Dep't of Corr., No. 15-CV-115-LM,

, at *2 (D.N.H. May 5, 2015) (approving report and recommendation); Kelley Bey,

, at *13 (declining to dismiss RLUIPA claim against county defendants sued in their official capacities, because such claims are “not barred by the Eleventh Amendment”); Turner,

, at *4 (reserving question); Aladimi v. Hamilton Cty. Justice Ctr., No. 1:09-CV-398,

, at *1 (S.D. Ohio Feb. 1, 2012), report and recommendation adopted, No. 1:09- CV-398,

(S.D. Ohio Feb. 17, 2012) (noting that it “remains an open question” whether RLUIPA damages claim against county employee in his official capacity is viable).

10 favor of the sovereign”); see also Haight v. Thompson,

(6th Cir. 2014) (Cole, C.J., concurring) (“Sossamon was

decided on narrow grounds specific to the legal framework at

issue in that case — namely, sovereign immunity.”).

That requirement does not apply here, though, because, as I

have explained, the defendants in this case are not entitled to

sovereign immunity. Instead, to determine whether RLUIPA

authorizes damages claims against counties, the meaning of

“appropriate relief” turns on a different rule -- that federal

courts can award damages in support of a private right of action

absent “clear direction” that Congress intended to exclude a

damage remedy. See Centro Familiar Cristiano Buenas Nuevas,

. As explained above, Congress did not clearly bar

damage claims when it authorized plaintiffs to recover

“appropriate relief” on their RLUIPA claims.

The defendants thus have not supplied an adequate basis to

dismiss Perfetto’s RLUIPA claims. Perfetto’s suit, however,

raises a question that the parties have not yet addressed --

what standard governs counties’ liability under RLUIPA for the

alleged wrongful conduct of their employees? In answering this

question, some courts have suggested that counties or

municipalities can be held vicariously liable under RLUIPA for

11 their employees’ actions. See, e.g., Alderson v. Burnett, No.

1:07-CV-1003,

, at *3 (W.D. Mich. Sept. 8, 2008)

(stating that “municipal entities can be held vicariously liable

under RLUIPA”); Layman Lessons, Inc. v. City of Millersville,

Tenn.,

(M.D. Tenn. 2008) (same);

Agrawal v. Briley, No. 02 C 6807,

(N.D. Ill.

Aug. 25, 2004) (“RLUIPA appears implicitly to authorize

respondeat superior liability against municipalities . . . .”).

Other courts disagree, concluding that vicarious liability is

unavailable under RLUIPA. These courts reason that, as with

Section 1983 claims, a county or municipality cannot be liable

for a RLUIPA violation merely because it employs a tortfeasor.

See, e.g., Mahone v. Pierce Cty., No. C10-5847 RBL/KLS,

, at *3 (W.D. Wash. May 23, 2011), report and

recommendation adopted, No. C10-5847 RBL/KLS,

(W.D. Wash. Aug. 1, 2011); Greenberg v. Hill, No. 2:07-CV-1076,

, at *3 (S.D. Ohio Mar. 31, 2009) (“[T]o establish

liability under RLUIPA (and Section 1983), a plaintiff must

prove, among other things, the personal involvement of each

defendant in the alleged violation”); see also Patel v. Bureau

of Prisons,

(D.D.C. 2015) (concluding

that “pure vicarious liability . . . is not sufficient to state

12 a claim under [the Religious Freedom Restoration Act]”).

Because the parties do not address this question, I express

no opinion regarding the appropriate standard here.

IV. CONCLUSION

For the reasons set forth above, defendants’ motion to

dismiss (Doc. No. 48) is denied.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

July 1, 2016

cc: Jonathan A. Perfetto, pro se John A. Curran, Esq.

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