NOT RECOMMENDED FOR PUBLICATION File Name: 20a0207n.06
No. 18
- 3678

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
RAYMOND ZARECK , Plaintiff

- Appellant ,

v. CORRECTIONS CORPORATION OF AMERICA; MICHAEL PUGH, Warden of Corrections Corporation of America; DENNIS JOHNSON, Acting Warden of Corrections Corporation of America; FOOD SERVICE ADMINISTRATOR; FOOD SERVICE SUPERVISOR , Defendants

- Appellees

. ) ) ) ) ) ) ) ) ) ) ) ) ) ON APPEAL FROM THE UNITED STATES DISTRICT COURT FO R THE NORTHERN DISTRICT OF OHIO
OPINION

BEFORE: STRANCH, READLER, and MURPHY , Circuit Judges

. JANE B. STRANCH , Circuit Judge
. Raymond Zareck alleges that while incarcerated at
the Corrections Corporation of America (CCA) facility in Youngstown, Ohio , CCA officials fed
him and other Muslim prisoners pork portrayed as turkey even though eating pork violates
Zareck’s religious beliefs. The district court dismissed Zareck’s fee

- paid C o mplaint before service and without granting leave to amend because it concluded that Zareck’s allegations were “totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion”
under Apple v. Glenn , 183 F.3d 477, 479 (6th Cir. 1999). We REVERSE and REMAND

. I. BACKGROUND
Zareck is Muslim and was incarcerated at the Ohio CCA facility from November 9, 2015 through February 8, 2016. As a religious practice, Zareck does not eat pork

. CCA officials toldNo. 18

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- him that he would be able to eat a religiously

- appropriate “pork free” diet while incarcerated

. He alleges that he and several other Muslim inmates were instead fed pork products that the Defendants portrayed as turkey.
When he learned that he and other M uslim prisoners were being fed pork products, he filed a grievance. In response, CCA officials told h im he would be al l right and that it was an isolated
incident. But Zareck contends that it was not an isolated incident; he was fed pork portrayed as

tur key on “over twelve occasions.” After he exhausted the grievance procedure, Zareck filed a pro se 42 U.S.C. § 1 983 action against CCA ; Michael Pugh, the Warden of CCA ; Dennis Johnson, the acting Warden of CCA ; the Food Service Administrator ; and the Food Service Supervisor. He paid the associated filing fee. Zareck sought injunctive, declaratory, and compensatory relief for
the alleged violations of his constitutional rights.
Before Zareck could serve his fee

- paid Complaint on Defendants, the district court dismissed the Complaint sua sponte . Relying on the Apple standard, the court determined that the
C omplaint was so lacking in legal plausibility and/ or so devoid of merit that the court must dismiss
it without granting leave to amend or giving Zareck an opportunity to respond to a motion to
dismiss. Apple , 183 F.3d at 479

. Zareck timely appealed. Because the Defendants were never served, they are not parties to this appeal. Zareck is no lo nger confined at CCA Youngstown.
II. ANALYSIS We review a district court’s dismissal for lack of subject matter jurisdiction de novo. Willis

v. Sullivan , 931 F.2d 390, 395 (6th Cir. 1991). P ro se complaints must b e liberally construed and
“held to less stringent standards than” those used in evaluating pleadings submitted by attorneys.
Erickson v. Pardus , 551 U.S. 89, 94 (2007) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976))

.

“ Generally, a district court may not sua sponte dismiss a complaint where the filing fee has been paid unless the court gives the plaintiff the opportunity to amend the complaint.” Apple , 183 F.3dNo. 18

- 3678 , Zareck v. Corrections Corp. of A m. , et al.

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- at 4 79 (citing Benson v. O’Brian , 179 F.3d 1014, 1017 (6th Cir. 1999))

. Sua sponte dismissal of a paid c omplaint for failure to invoke subject

- matter jurisdiction is appropriate , however, in the

“ rare st” circumstance “when the allegations of a complaint are totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.” Id. at 479

– 80 (affirming
dismissal for lack of jurisdiction where a plaintiff “sued Senator John Glenn, Chief Justice William Rehnquist, and other top government officials, claim ing that the defendants violated his First Amendment right to petition the government because they did not answer his many letters or take the action requested in those letters.”). Because t his avenue of dismissal circumvents procedural protections and the adversarial process , its use is not proper if a district court is merely skeptical about a plaintiff’s ability to ultimately state a claim under Rule 12(b)(6). See id. at 480. It is reserved only for patently frivolous comp laints, which present no Article III case because there is

“ no room for the inference that the question [ s ] sought to be raised can be the subject of controversy.” Hag ans v. Lavine , 415 U.S. 528, 537 (1974) (quoting Levering & Garrigues Co. v.
Morrin , 289 U.S. 103, 105 (1933) )

. The district court here correctly identified that § 1983 claims may be brought against only state, not federal, actors. I t next concluded that it lacked subject

- matter jurisdiction over Zareck ’s Complaint because, in its view, even construing Zareck’s claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics , 403 U.S. 388 (1971), the allegations were “totally implausible, attenuated, unsubstantial, frivolous, devoid of merit, or no longer open to discussion.”
Zareck v. Corr. Corp. of Am. , No. 4:18 CV 334, 2018 WL 3241242, at *1 (N.D. Ohio July 3, 2018) (quoting Apple , 183 F.3d at 4 79 ) . Specifically, the court noted that CCA is a private prison facility, and relying on Correctional Services Corporation v. Malesko , 534 U.S. 61 (2001), decided that a
Bivens action cannot be brought against a private corporation that has contracted with the federalNo. 18

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- Bureau of Prisons under any circumstances. Zareck , 2018 WL 3241242 at *1

. As for Zareck’s claims against the individual Defendants, the court cited Minneci v. Pollard , 565 U.S. 118 (2012) ,
to support its conclusion that “no Bivens action lies against ‘privately employed personnel working at a privately operated federal prison’ for constitutional rights violations where the conduct alleged ‘is of a kind that typically falls within the scope of traditional state tort law.’” Zareck , 2018 WL
3241242 at *1 (quoting Minneci , 565 U.S. at 131 )

. T he court , however, failed to analyze whether Zareck’s claims relate to conduct “of a kind that typically falls within the scope of traditional state
tort law , ” or whether any other state or federal remedy may be available to him.
The court , for example, did not consider whether Zareck’s allegations may have merit
under the Religious Freedom Restoration Act (RFRA), 42 U.S.C. § 2000bb

- 1. See i d. It is true

t hat Zareck’s pro se and fee

- paid Complaint does not cite RFRA

. By dismiss ing this type of complaint prior to service and without the benefit of the adversarial process, however, the district
court tasked itself with showing “the rarest of circumstances w here . . . the complaint is deemed totally implausible. ” Apple , 183 F.3d at 480.
A. RFRA
RFRA prohibits the federal government, including any instrumentality, official, or “person acting under color of law , ” from “ substantially burden [ing] a person’s exercise of religion,” unless
the government actor demonstrates that the substantial burden “ 1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest. ” 42 U.S.C. § 2000bb

- 1(a)

– (b); id. § 2000bb

- 2(a)

. A defendant substantially burdens a person’s exercise of religion by forcing the person to choose between engaging in conduct that violates sincerely held religious beliefs and facing serious consequence.
New Doe Child #1 v. Cong. of United States , 891 F.3d 578, 589 (6th Cir. 2018).No. 18

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- Here, Zareck has alleged a sincerely held religious belief

— as a Muslim, he must refrain from eating pork as part of the practice of his faith

. The allegations that Defendants fe d him pork products portrayed as turkey also likely show that Zareck’s religious exercise was substantially
burden ed because serving “ a small number of noncompliant meals

— even a single violation

— can be a substantial burden. ” Brandon v. Kinter , 938 F.3d 21, 35 (2d Cir. 2019); see also Haight v. Thompson , 763 F.3d 554, 564

– 65 (6th Cir. 2014) (ruling that state prison officials’ decision to deny prisoners’ request for Native American foods for their annual powwow imposed a substa ntial burden on their religious practices under the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), 42 U.S.C.A. § 2000cc

– 1(a )).
A person whose religious exercise has been burdened may assert a claim to “obtain appropriate relief.” Id. § 2000bb

- 1(c)

. Because Zareck is no longer incarcerated at CCA, his
claims for injunctive and declaratory relief are moot, leaving only his claims fo r damages.
Whether “appropriate relief” includes damages when defendants are a private

- prison facility or private

- prison officials acting in their individual capacity , however, are open question s in this
circuit. And a broader articulation of the latter

— whether RFRA allows individual

- capacity damages suits for violations of the law’s substantive protections of religious belief

— is sufficiently complicated and at issue in the courts that the Supreme Court recently granted certiorari to consider
it. See FNU Tanzin v. Tanvir , No. 19

- 71, 2019 WL 6222538, at *1 (U.S. Nov. 22, 2019). To be sure, our case law specifies that RLUIPA, RFRA’s cousin, does not permit plaintiffs to collect money damages from state prison officials sued in their individual capa cities. Haight , 763 F.3d at 559. But it is not clear that our reasoning in Haight v. Thompson applies with equal force to RFRA claims brought against a private

- prison facility or to individual

- capacity RFRA claims brought against officials working for a private corporation that has contracted with theNo. 18

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- federal government to provide prison food services. The complexity of these issues, likely to be
addressed in Ta nzin , grows out of the Supreme Court’s earlier sovereign immunity case, Sossamon
v. Texas , 563 U.S. 277 (2011). At present, t he only courts of appeals to consider whether RFRA
allows individual

- capacity suits for money damages have determined that it does

. See Tanvir v. Tanzin , 894 F.3d 449, 463 (2d Cir. 2018) (finding that the phrase “appropriate relief” includes
money damages in the context of individual

- capacity suits against government officials based on the Franklin presumptio n) ( c ert. granted , Tanzin , 2019 WL 6222538 ) ; Mack v. Warden Loretto
FCI , 839 F.3d 286, 301 (3d Cir. 2016) ( i nterpreting RFRA as providing for monetary relief from
persons who violate the statute in their individual capacity under color of law)

. 1
Because we have yet to analyze whether damages may constitute “appropriate relief” under
RFRA , and the facts alleged in Zareck’s Complaint likely plead violations of RFRA’s substantive protections, Zareck should have the opportunity to amend his Complaint to add this claim, if he so chooses

. B. Bivens Relying on Correctional Services Corporation v. Malesko , 534 U.S. 61, 63 (2001), the
district court decided that a Bivens action cannot be brought against a private corporation that has contracted with the Federal Bureau of Prisons under any circumstances. On this b asis, it dismissed Zareck’s claims against CCA, a private prison facility. Malesko , however, does not render Zareck’s claims against CCA or its individual employees so totally implausible as to defeat subject matter jurisdiction. Even though Malesko refu sed to expand Bivens by allowing a suit against a

1 Some o ther circuits have not encountered an appropriate occasion to answer the question. See Hale v. Fed. Bureau of Prisons , 759 F. App ’ x 741, 744 n.4 (10th Cir. 2019 ) (declining to consider “whether RFRA damages claims are available against individual defendants); Fazaga v. Fed. Bureau of Investigation , 916 F.3d 1202, 1246 n.42 (9th Cir. 2019) (“Because we affirm dismissal on another ground, we do not reach” whether RFRA permits “damages suits against individual

- capacity defendants.”)No. 18

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- private corporation that does not prevent Zareck , at this preliminary stage of litigation , from pursuing a claim that a federal court may at least consider after briefing from the respective parties. The district court further supported its dismissal of the individual D efendants by reference

to Minneci v. Pollard , 565 U.S. 118 , 131 . The Minneci Court held that no Bivens remedy exists
for a federal prisoner seeking “damages from privately employed pers onnel working at a privately operated federal prison, where the conduct allegedly amounts to a violation of the Eighth Amendment, and where that conduct is of a kind that typically falls within the scope of traditional state tort law,” such as “conduct inv olving improper medical care.” 565 U.S. at 131. Where such a remedy is available, the plaintiff “must” instead “seek a remedy under state tort law.” Id. The Court left to another day whether to imply a Bivens action in a case involving private

- prison
of ficials engaged in different types of constitutional violations, including even a different type of Eighth Amendment violation. Id. at 130. The district court here did not consider whether Zareck’s claims against the individual
Defendants relate to conduc t “of a kind that typically falls within the scope of traditional state tort law,” id. at 131, or whether there was any “ ‘alternative, existing process’ capable of protecting the
constitutional interests at stake , ” i d. at 125 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 (2007) )

. Because neither Malesko nor Minneci stand for the proposition that Zareck’s allegations are so “totally implausible” that they strip the district court of subject

- matter jurisdiction under Rule 12(h)(3), dismissal was improper. The district court is correct that the Supreme Court has
been reluctant to extend the Bivens remedy. Ziglar v. Abbasi , 137 S. Ct. 1843, 1857 (2017). And it is true that any potential Bivens claim is likely “ fraught with other troubles.” Marie v. Am. Red
Cross , 771 F.3d 344, 365 (6th Cir. 2014). But these obstacles do not automatically render Zareck’s

c laims “devoid of merit” or “no longer open to discussion.” Apple , 183 F.3d at 479. As a result,No. 18

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- sua sponte dismissal of Zareck’s fee

- paid Complaint at this stage

— prior to service and without giving Zareck an opportunity to amend

— was inappropriate.
III. CONCLUSION For the foregoing reasons, we REVERSE and REMAND so that Zareck may amend his Complaint and serve the Defendants.