1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JESSE RUSSELL SIMPSON, Plainti ff

, v. Civil Action No. 1:19-cv-03173 (CJN) FEDERAL BUREAU OF PRISONS, et al.,

De f

endants

.

MEMORANDUM OPINION Jesse Russell Simpson seeks equita ble relief and damages for De fendants’ 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 alle ges that he practices Orthodox Therian Shamanism—a religion tha t requires him to “wear an imit ation [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 indivi dual 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 D istrict of Pennsylvania, and re tain certain of the individualcapacity claims.
I. Background Simpson is a prisoner currently i ncarcerated at Federal Correct ional Institution (“FCI”) Loretto in Pennsylvania. See id. at 9–10. Prior to being transferre d to FCI Loretto, Simpson w as2 housed at FCI Danbury in Connectic ut, transferred to FCI Morgan town in West Virginia, and temporarily held at Federal Transfer Center (“FTC”) Oklahoma Ci ty in Oklahoma and U.S. Penitentiary (“USP”) Canaan in Pennsylvania. See id. at 4–10. On October 21, 2019, Simpson filed thi s lawsuit alleging past a nd 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”), 4 2 U.S.C. §§ 2000bb to 2000bb-4 (2018), the Religious Land Use and Institutionalized P ersons Act (“RLUIPA”), id. §§ 2000cc to 2000cc5, and Bivens v. Six Unknown Named Ag ents of Federal Bureau of
Narcotics , 403 U.S. 388 (1971). See generally Compl. Simpson claims to practice Orthodox Therian Shamanism, a religion “with similar beliefs to many Nat ive American and Animism religions.” Id. at 4. He asserts that, to compl y with the tenets of this reli gion, he must “wear an imitation [w]olf tail” at all time s and “meditate regularly aro und imagery of [w]olves.” Id. According to Simpson, failing t o practice his religion in this way subjects him to “punishment of eternal damnation.” Id. Simpson sues twenty-three federa l Defendants, including the Bur eau of Prisons and various federal employees in bot h their individual and official capacities 1 for preventing him from practicing Orthodox Therian S hamanism 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 off icial 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 Ci ty FTC; (7) Warden C. Gomez; (8) Captain Fullen; (9) U nit Manager Tejera; (10) Counse lor B. Plavi; (11) Case Manager Barkaszi; (12) Case Ma nager E. Dodrill; (13) Officer Du lla; (14) Officer Rudy; (15) Regional Director D.J. Har mon; (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 Prison s General Counsel.3 injunction permitting him “to purchase, make, or otherwise obta in 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 t he preliminary equitable relie f, the U.S. Attorney’s Office of the District of Colum bia appeared on behalf of the Bu reau of Prisons (“BOP”) and the federal employees with respect t o the official-capacity claims asserted against them (the “Official-Capacity Claims”). N otice of Appearance, ECF No. 3. Service has not yet been effected with respect to the indi vidual-capacity claims against the individual defendants (the “Individual-Capacity Claims”). See Simpkins v. D.C. Gov’t , 108 F.3d 366, 369 (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 agai nst BOP and the Official-Capac ity Claims are the only claims properly before the Court at this time. On November 19, 2019, Defendants filed their opposition to Simp son’s request for preliminary equitable relief i n which they move to dismiss, or alternatively, for summary judgment on Simpson’s claims . Mem. in Supp. of Opp’n to Mot. f or TRO & Defs.’ Mot. to Dismiss, or Alt., for Summ. J., or Alt. to Transfer (“Defs.’ Op p’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) t o all of Simpson’s IndividualCapacity Claims. See 108 F.3d at 369 (requiring defendants in Bivens actions to be served as individuals because Bivens claims against federal official s in their individual capacitie s “cannot be viewed as actions against the government” as they impose per sonal liability on the federal official and because Bivens defendants, under Department of J ustice procedures, “have to shoulder the burden of requesting, in writing, that the governm ent provide representation or, in case of a conflict of interes t, pay for private counsel”).4 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. t o Diss, or, Alt., for Summ. J ., or Alt., to Transfer, ECF No. 15.
II. Analysis Simpson seeks both damages and equitable relief under the Const itution, RLUIPA, RFRA, and Bivens . Mot. for TRO & Prelim. Inj. at 1–4 (seeking a TRO and a prel iminary injunction); Compl. at 97–98 (s eeking compensatory damages, pun itive damages, declaratory judgment, and a permanent injunction). Defendants move to dism iss the claims that are presently before the Court, eith er under Federal Rule of Civil Procedure 12(b)(1) because the claims are moot or Defendants have immunity from suit, under Ru le 12(b)(6) because Simpson fails to state a claim, or under Ru le 12(b)(3) because venue is improper. See generally Defs.’ Opp’n & Mot.
A. RLUIPA Claims Simpson cannot maintain RLUIPA cl aims against any of the Defend ants. RLUIPA “does not create a cause of action again st the federal government or its correctional facilities.” Jackson v. Fed. Bureau of Prisons , No. 06-592, 2006 WL 2434938, at *3 (D.D.C. Aug. 22, 2006) (fi rst citing Ish Yerushalayim v. U.S. Dep’t of Corr. , 374 F.3d 89, 92 (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—incl uding the Individual-Capacity and O fficial-Capacity RLUIPA Claims— are therefore dismissed a gainst all Defendants for fail ure 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 , 441 F.3d5 1022, 1026 (D.C. Cir. 2006). The BOP and federal employees in their official capacities are therefore immune from Simps on’s damages claims under RFRA. 3
2. Simpson’s Constitutional Damages Claims Simpson also seeks damages for alleged violations of his consti tutional rights under the First Amendment and Equal Pro tection Clause . Compl. at 18–27. Again, however, “[s]overeign immunity . . . bar[s] suits for mone y damages against officials in their official capacity absent a specific waiver by the government.” Clark v. Library of Cong. , 750 F.2d 89, 103 (D.C. Cir. 1984) (citations omitted). Simpson does not point to a specifi c waiver for damages for his alleged constitutional injuries, see Pl.’s Reply at 12, and the Cour t is not aware of one. As a result, the BOP and federal empl oyees in their official capacit ies are immune from Simpson’s constitutional damages claims. 4 In sum, none of Simpson’s claims for damages presently before t he Court—those against the BOP and the Official-Capacity Claims—survive.

3 The Court notes that Simpson’s Individual-Capacity Claims unde r RFRA present a more complex question. The D.C. Circuit has not addressed whether R FRA permits damages actions against federal officers sued i n their individual capacities. At least two Circuit Courts of Appeals have held that such suits are permitted. Tanvir v. Tanzin , 894 F.3d 449, 462 (2d Cir. 2018) (“[W]e hold that RFRA . . . author izes a plaintiff to bring ind ividual capacity claims against federal officials or other ‘per son[s] acting under color of [fe deral] law.’”); Mack v. Warden Loretto FCI , 839 F.3d 286, 304 (3d Cir. 2016) (“[W]e c onclude that federal officers who violate RFRA may be sued in their individual cap acity for damages.”). Recently, the Supreme Court granted certiorari on this question. Tanzin v. Tanvir , No. 19-71, 2019 WL 6222538, at *1 (U.S. Nov. 22, 2019). These Individual-Cap acity RFRA Claims, however , are not properly before the Court until Simpson serves Defenda nts in their individual capac ities.

4 Simpson’s Individual-Capacity Claims seeking damages for const itutional violations under Bivens are not properly before the C ourt until Simpson effects servic e on the individual Defendants.6 C. Simpson’s Equitable Relief Claims Simpson also seeks preliminary and permanent equitable relief f rom 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 s uch relief would run against the BOP and the individual Defendant s in the performance of their o fficial 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 , 34 F. Supp. 3d 68, 80 (D.D.C. 2014) (“Courts have concluded that t here is no basis for suing a government official for declar atory and injunctive relief in hi s or her individual or personal capacity.” (citations and inte rnal quotation marks omitted)); Hatfill v. Gonzales , 519 F. Supp. 2d 13, 26 (D.D.C. 2007) (“[O]nly by acti ng as a government officia l (not as an indi vidual acting personally), can a public official ’s compliance with a court de cree remedy the governmental action, policy[,] or practice thatis being challenged.”); see also Feit v. Ward , 886 F.2d 848, 858 (7th Cir. 1989) (“The policy [th e plaintiff] challenges, howeve r, is that of the Forest Service and is carried out by the defendants in their capaci ties as supervi sory Forest Service employees, i.e., in their official capacities. Mor eover, the equitable relief F eit requests—a declaration that the policy is unconstitutional and an injunction barring the defend ants 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 re lief for allege d violations of his religious r ights by the BOP generally and by certain offici als at five BOP facilities a nd 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 might7 have for equitable relief ari sing out of the conditions of his confinement in that prison.” Scott v. District of Columbia , 139 F.3d 940, 941 (D.C. Cir. 1998) (footnote omitted). Simps on was recently transferred to FCI Loretto, and thus BOP and those Def endants working at FCI Loretto and BOP Headquarters are now resp onsible for the conditions of his confinement. See Compl. at 9–10. Simpson’s Official-Capacity C laims for equitable relief against the individual Defendants working at FTC Oklahoma, FCI Mor gantown (and the related BOP Mi d-Atlantic Regional Office), and USP Canaan are therefore moot. See Reid v. Hurwitz , 920 F.3d 828, 832 (D.C. Cir. 2019) (“Under the mootness doctrin e, we cannot deci de a case if ‘events have so transpired that the decision will neither present ly affect the parties’ rights nor have a more-than-speculative chance of affecting them in the future.’” (quoting Clarke v. United States , 915 F.2d 699, 701 (D.C. Cir. 1990) (en banc))). 5 Simpson’s claims against the BOP (which sets BOP general policy) and Official-Capacity Cla ims against individual Defenda nts working at FCI Loretto (where he is currently confine d) and at BOP Headquarters (who s et 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 cl aims on this ground under Federal Rule 12(b)(3) or, in the alternative, to transfer th e claims under 28 U.S.C. § 1404(a) t o 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 , 833 F.3d 242, 250–51 (D.C. Cir. 2016) (vol untary cessation).

6 These Defendants are: (1) the BOP; (2) Warden V. Moser; (3) C haplain Lesh; (4) Chaplain Stadler; (5) Captain Waughen; ( 6) Ian Connors; and (7) BOP Gene ral Counsel.8 Pennsylvania, the location of Sim pson’s current place of incarc eration, FCI Loretto. See Defs.’ Opp’n & Mot. at 19–20. Because only claims against the BOP and the Official-Capacity C laims are currently before the Court, the applicab le venue statute is 28 U.S.C. § 1 391(e). See Cameron v. Thornburgh , 983 F.2d 253, 256 (D.C. Cir. 1993) (emphasizing that § 1391(e ) applies to prison officials sued in their offici al capacities). That provision p rovides: A civil action in which a defendant is an officer or employee o f the United States or any agency thereof acting in his official capa city . . . 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 i s involved in the action. § 1391(e)(1). Venue is proper in t his district because three D efendants against whom OfficialCapacity Claims are asserted reside here. See § 1391(e)(1)(A). But that does not mean this is t he appropriate forum for this dispute. Because a plaintiff can manufacture venue in thi s District by naming high governmen t officials and entities as defendants, “[c]ourts in this circ uit must examine challenges t o . . . venue carefully.” Cameron , 983 F.2d at 256. The Court may therefore transfer suits involv ing federal prisoners under 28 U.S.C. § 1404(a) after considerin g where the prisoner is inc arcerated, the location of relevant records and witnesses, and othe r related convenience factors. See, e.g. , Pinson v. U.S. Dep’t of
Justice , 74 F. Supp. 3d 283, 293 (D.D.C. 2014); Galindo v. Gonzales , 550 F. Supp. 2d 115, 117 (D.D.C. 2008) (“There is no questio n 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 incarcera ted and where, according to pl aintiff, the conspiracy to deprive him of medical treatment conti nued following his transfer to th e La Tuna Facility.” (citation omitted)).9 Here, all of Simpson’s presentl y remaining claims seek equitab le relief regarding his current conditions at FCI Loretto —the facility where he is curr ently incarcerated, where records and witnesses involving his curren t treatment are located, and where the acts and omissions he seeks to enjoin are allegedly occurring. See generally Compl. As a result, hi s surviving claims are more appropriately litigated in the Western District of Pen nsylvania, the dist rict in which FCI Loretto is located. See, e.g. , Pinson , 74 F. Supp. 3d at 293–94 (transf erring an incarcerated plaintiff’s claims for equitable relief from the District of Co lumbia to the District of Colorado under § 1404(a) because the plaintif f was incarcerated in Color ado 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 Defendant s under RFRA and the Constituti on are DISMISSED , and his claims for equitable relief aga inst the individual Defendants w orking at FTC Oklahoma, FCI Morgantown (and the BOP Mid-A tlantic Regional Office), and USP Canaan are DISMISSED

. Simpson’s claims for equitable relief against the BOP and indiv idual 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 w ith this Memorandum Opinion.

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