UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW HAMPSHIRE

Frank Staples

v. Case No. 16-cv-33-PB Opinion No.

NH State Prison, Warden, et al.

MEMORANDUM AND ORDER

Frank Staples is a practitioner of Taoism. He was

incarcerated at the New Hampshire State Prison from 2011 until

2015. During that time, he claims that he suffered from

harassment by multiple correctional officers because he refused

for religious reasons to shave his beard to conform to the

prison’s beard policy. The harassment included physical and

mental abuse, and unjustified confinement in the prison’s Secure

Housing Unit, Secure Psychiatric Unit, and Closed Custody Unit.

He also claims that he was repeatedly denied parole because he

refused to shave his beard.

Staples has filed a rambling, vague, and scattershot

complaint against the Prison Warden, the Commissioner of the

Department of Corrections, every member of the Parole Board, the

Prison Chaplin, and 14 other prison employees. He asserts

several claims based on the Religious Land Use and

Institutionalized Person Act (RILUPA) and the federal constitution. He seeks both damages and declaratory relief.

Defendants have responded with a motion to dismiss the entire

complaint for failure to state a claim.

In this Memorandum and Order I address only Staples’ RILUPA

claims.

I. STANDARD OF REVIEW

To survive a motion to dismiss for failure to state a

claim, a plaintiff must make factual allegations sufficient 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 pleads “factual content that allows the

court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.”

In deciding a motion to dismiss, I employ a two-step

approach. See Ocasio–Hernández v. Fortuño–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.”

(citations, internal quotation marks, and alterations

omitted). A claim consisting of little more than “allegations

that merely parrot the elements of the cause of action” may be 2 dismissed.

Second, I credit as true all non-conclusory

factual allegations and the reasonable inferences drawn from

those allegations, and then determine if the claim is plausible.

The plausibility requirement “simply calls for enough fact

to raise a reasonable expectation that discovery will reveal

evidence” of illegal conduct. Twombly,

. The

“make-or-break standard” is that those allegations and

inferences, taken as true, “must state a plausible, not a merely

conceivable, case for relief.” Sepúlveda–Villarini v. Dep't of

Educ.,

(1st Cir. 2010); see Twombly,

(“Factual allegations must be enough to raise a right to

relief above the speculative level. . . .”).

II. ANALYSIS

Staples bases his RLUIPA claims on his contention that

defendants substantially burdened his right to practice his

religion by subjecting him to a pattern of harassment and the

denial of parole for refusing to shave his beard. He also

mounts a facial attack on the prison’s beard regulation, which

he claims is inconsistent with the Supreme Court’s recent

decision in Holt v. Hobbs,

(2015). Defendants

respond by arguing that Staples’ RLUIPA claims fail because he

is not entitled to recover damages for a violation of RLUIPA and 3 lacks standing to seek declaratory relief. I examine each

argument in turn.

A. Damages

“Although the First Circuit has reserved judgment on the

issue . . . every federal appeals court that has addressed the

issue has decided that RLUIPA does not authorize claims for

damages asserted against defendants sued in their individual

capacities.” Pabon v. Cheshire Cty. Dep't of Corr., No. 15-CV-

115-LM,

, at *1 (D.N.H. May 5, 2015) (internal

citation omitted); see Washington v. Gonyea,

(2d Cir. 2013); Sharp v. Johnson,

(3d Cir.

2012); Rendelman v. Rouse,

(4th Cir. 2009);

Sossamon v. Lone Star State of Tex.,

, 328–29 (5th

Cir. 2009)), aff'd sub nom. Sossamon v. Texas,

(2011); Nelson v. Miller,

, 886–89 (7th Cir. 2009);

Stewart v. Beach,

(10th Cir. 2012). This

court has concurred. See Pabon, No. 15-CV-115-LM,

, at *1; see also Moseley v. Spencer, No. CV 15-13661-

LTS,

, at *4 (D. Mass. Jan. 27, 2016) (slip

opinion); Cryer v. Spencer,

(D. Mass.

2013) (collecting cases).

In response, Staples cites only district court decisions

that do not engage with, and are supplanted by, subsequent well- 4 reasoned circuit decisions. Compare Shidler v. Moore,

(N.D. Ind. 2006) (assuming without analysis

that damages available under RLUIPA), with Nelson v. Miller,

(7th Cir. 2009) (“[A]s a matter of statutory

interpretation, and to avoid the constitutional concerns that an

alternative reading would entail, we decline to read RLUIPA as

allowing damages against defendants in their individual

capacities.”).

I decline to resist the overwhelming weight of case law.

Under RLUIPA, a plaintiff may “obtain appropriate relief

against” government officials. 42 U.S.C. §§ 2000cc–2(a); see

2000cc-5(4). But RLUIPA “was enacted pursuant to Congress’

spending power, see 42 U.S.C. § 20000c, which allows the

imposition of conditions, such as individual liability, only on

those parties actually receiving the state funds.” Gonyea,

. Analogously to contract law, “non-recipients of

the funds, including individuals who are state officials,

generally cannot be subject to private liability for monetary

damages” for violating conditions to which they did not agree.

Sharp,

. “‘To decide otherwise would create

liability on the basis of a law never enacted by a sovereign

with the power to affect the individual rights at issue’ — i.e.,

the state receiving the federal funds — and this would ‘raise 5 serious questions regarding whether Congress had exceeded its

authority under the Spending Clause.’” Gonyea,

(internal citations omitted) (quoting Sossamon,

;

Nelson,

). Thus, “the appropriate relief in

RLUIPA actions is limited to injunctive or declaratory relief to

enforce the statute.” Moseley, No. CV 15-13661-LTS,

, at *4. Accordingly, Staples may not obtain damages from

defendants in their individual capacities.

B. Declaratory Relief

Federal courts may not issue a declaratory judgment

“deeming past conduct illegal” where that opinion “would be

merely advisory.” Am. Civil Liberties Union of Massachusetts v.

U.S. Conference of Catholic Bishops (ACLUM),

(1st Cir. 2013). Rather, “the facts alleged must ‘show that

there is a substantial controversy ... of sufficient immediacy

and reality to warrant the issuance of a declaratory judgment.’”

at 53-54 (quoting Preiser v. Newkirk,

(1975)). Staples asserts that he is entitled to a declaratory

judgment because “he is currently on parole and therefore on

conditional release from the prison.” Doc. No. 40-1. But mere

speculation that Staples might return to prison on a parole

violation does not suffice, and he does not cite legal authority

suggesting otherwise. Moreover, there is no reason to believe 6 that defendants will fail in the future to comply with Supreme

Court precedent in the unlikely event that Staples is again

incarcerated at the prison at some point in the future. For

these reasons, Staples does not allege a sufficiently

substantial, immediate, and live controversy to support his

RLUIPA claim for declaratory relief.

III. CONCLUSION

I grant in part defendants’ motion to dismiss (doc. no. 38)

insofar as they seek the dismissal of Counts I and II of

Staples’ amended complaint. I will address defendants’

remaining arguments in a separate Memorandum and Order.

SO ORDERED.

/s/Paul Barbadoro Paul Barbadoro United States District Judge

February 8, 2017

Cc: Donna J. Brown, Esq. Francis Charles Fredericks, Esq. Seth Michael Zoracki, Esq.

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