IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF COLORADO

Civil Action No. 11-cv-02291-REB-MJW

VERNE JAY MERRELL,

Plaintiff,

v.

DAVID ALLRED and

PATRICIA MITCHELL,

Defendants.

RECOMMENDATION ON

PLAINTIFF’S MOTION FOR INJUNCTIVE RELIEF (DOCKET NO. 3)

AND

DEFENDANTS’ MOTION TO DISMISS (DOCKET NO. 34)

 

MICHAEL J. WATANABE

United States Magistrate Judge

This case is before this court pursuant to an Order of Reference to United States

Magistrate Judge issued by Judge Robert E. Blackburn on December 8, 2011. (Docket

No. 22).

PLAINTIFF’S ALLEGATIONS

Plaintiff Verne Merrell alleges the following in his Complaint (Docket No. 1). 

Plaintiff is currently incarcerated at the United States Penitentiary Administrative

Maximum facility in Florence, Colorado. Plaintiff objects to being injected with

pharmaceuticals claiming that such injections violate his religious beliefs. More

specifically, plaintiff objects to the injection of PPD, which is used to test for

tuberculosis, and appears to be administered annually to the prison population

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sometime in September. Plaintiff alleges that in September 2008, September 2009, and

October 2010, he was forcibly injected with PPD despite his protest that the injections

violated his religious beliefs. Plaintiff further alleges that he has been subjected to

disciplinary actions due to his non-cooperation with the PPD injections. 

Plaintiff’s single claim for relief is made against defendants David Allred and

Patricia Mitchell both in their individual and official capacities.

MOTION FOR INJUNCTIVE RELIEF

Plaintiff’s Motion for Injunctive Relief (Docket No. 3) was filed on August 31,

2011. In it, plaintiff seeks injunctive relief to prevent a PPD injection which was

scheduled to take place in September 2011. According to the letter filed by plaintiff on

February 16, 2012 (Docket No. 32), that injection has since taken place. Accordingly,

plaintiff’s Motion for Injunctive Relief (Docket No. 3) has been rendered moot. 

MOTION TO DISMISS

Defendants’ Motion to Dismiss (Docket No. 34) was filed on February 16, 2012. 

Plaintiff filed a response to defendants’ motion on March 2, 2012 (Docket No. 37). A

reply was filed by defendants on March 16, 2012 (Docket No. 38). Plaintiff filed a

surreply on April 3, 2012 (Docket No. 40), however the surreply was stricken by the

court on April 5, 2012 (Docket No. 44). 

The court has carefully considered the Complaint (Docket No. 1), the motion to

dismiss (Docket No. 34), plaintiff’s response (Docket No. 37), and defendants’ reply

(Docket No. 38). In addition, the court has taken judicial notice of the court’s file, and

has considered the applicable Federal Rules of Civil Procedure and case law. The

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court now being fully informed makes the following findings of fact, conclusions of law,

and recommendations.

Under Rule 12(b)(1), a court may dismiss a complaint for “lack of jurisdiction over

the subject matter.” Fed. R. Civ. P. 12(b)(1). The burden of establishing subject matter

jurisdiction is on the party asserting jurisdiction. See Basso v. Utah Power & Light Co.,

495 F.2d 906, 909 (10th Cir. 1974). Motions to dismiss pursuant to Rule 12(b)(1) take

two forms. First, a party may attack the facial sufficiency of the complaint, in which case

the court must accept the allegations of the complaint as true. Holt v. United States, 46

F.3d 1000, 1002-03 (10th Cir. 1995). Second, if a party attacks the factual assertions

regarding subject matter jurisdiction through affidavits and other documents, the court

may make its own findings of fact. See id. at 1003. A court’s consideration of evidence

outside the pleadings will not convert the motion to dismiss to a motion for summary

judgment under Rule 56. See id.

Under Rule 8(a)(2), a pleading must contain “a short and plain statement of the

claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). A motion to

dismiss pursuant to Rule 12(b)(6) alleges that the complaint fails “to state a claim upon

which relief can be granted.” Fed. R. Civ. P. 12(b)(6). A complaint must be dismissed

pursuant to Fed. R. Civ. P. 12(b)(6) if it does not plead “enough facts to state a claim to

relief that is plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570

(2007)). “While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not

need detailed factual allegations, . . . a plaintiff’s obligation to provide the ‘grounds’ of

his ‘entitlement to relief’ requires more than labels and conclusions, and a formulaic

recitation of the elements of a cause of action will not do . . . .” Id. at 555 (citations

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omitted). “Factual allegations must be enough to raise a right to relief above the

speculative level.” Id. “[A] plaintiff must ‘nudge [] [his] claims across the line from

conceivable to plausible’ in order to survive a motion to dismiss. . . . Thus, the mere

metaphysical possibility that some plaintiff could prove some set of facts in support of

the pleaded claims is insufficient; the complaint must give the court reason to believe

that this plaintiff has a reasonable likelihood of mustering factual support for these

claims.” Ridge at Red Hawk, L.L.C. v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)

(quoting Twombly, 550 U.S. at 570).

The Tenth Circuit Court of Appeals has held “that plausibility refers ‘to the scope

of the allegations in a complaint: if they are so general that they encompass a wide

swath of conduct, much of it innocent, then the plaintiffs ‘have not nudged their claims

across the line from conceivable to plausible.’” Khalik v. United Air Lines, 671 F.3d

1188, 1191 (10th Cir. 2012). The court has further “noted that ‘[t]he nature and

specificity of the allegations required to state a plausible claim will vary based on

context.’” Id. The court thus “concluded the Twombly/Iqbal standard is ‘a middle

ground between heightened fact pleading, which is expressly rejected, and allowing

complaints that are no more than labels and conclusions or a formulaic recitation of the

elements of a cause of action, which the Court stated will not do.’” Id.

For purposes of a motion to dismiss pursuant to Rule 12(b)(6), the court must

accept all well-pled factual allegations in the complaint as true and resolve all

reasonable inferences in the plaintiff’s favor. Morse v. Regents of the Univ. of Colo.,

154 F.3d 1124, 1126-27 (10th Cir. 1998); Seamons v. Snow, 84 F.3d 1226, 1231-32

(10th Cir. 1996). However, “when legal conclusions are involved in the complaint ‘the

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tenet that a court must accept as true all of the allegations contained in a complaint is

inapplicable to [those] conclusions’ . . . .” Khalik, 671 F.3d at 1190 (quoting Ashcroft v.

Iqbal, 556 U.S. 662 (2009)). “Accordingly, in examining a complaint under Rule

12(b)(6), [the court] will disregard conclusory statements and look only to whether the

remaining, factual allegations plausibly suggest the defendant is liable.” Id.

Plaintiff is proceeding pro se. The court, therefore, reviews his pleadings and

other papers liberally and holds them to a less stringent standard than those drafted by

attorneys . Trackwell v. United States Government, 472 F.3d 1242, 1243 (10th Cir.

2007). See Haines v. Kerner, 404 U.S. 519, 520-21 (1972) (holding allegations of a pro

se complaint to less stringent standards than formal pleadings drafted by lawyers).

However, a pro se litigant's conclusory allegations without supporting factual averments

are insufficient to state a claim upon which relief can be based. Hall v. Bellmon, 935

F.2d 1106, 1110 (10th Cir. 1991). A court may not assume that a plaintiff can prove

facts that have not been alleged or that a defendant has violated laws in ways that a

plaintiff has not alleged. Associated Gen. Contractors of Cal., Inc. v. California State

Council of Carpenters, 459 U.S. 519, 526 (1983). See Whitney v. New Mexico, 113

F.3d 1170, 1173-74 (10th Cir. 1997) (court may not supply additional factual allegations

to round out a plaintiff's complaint or construct a legal theory on plaintiff’s behalf); Drake

v. City of Fort Collins, 927 F.2d 1156, 1159 (10th Cir. 1991) (the court may not

“construct arguments or theories for the plaintiff in the absence of any discussion of

those issues). “The plaintiff's pro se status does not entitle him to application of

different rules.” Wells v. Krebs, 2010 WL 3521777, at *2 (D. Colo. Sept. 1, 2010).

I. The Basis for Plaintiff’s Claim

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There is some dispute as to the basis for plaintiff’s claim. Plaintiff’s Complaint

asserts jurisdiction pursuant to Bivens under the Free Exercise Clause of the First

Amendment, and the Religious Land Use and Institutionalized Persons Act (“RLUIPA”),

42 U.S.C. § 2000cc, et seq. In their motion to dismiss, defendants contend that

plaintiff’s claim arises under Bivens. However, plaintiff’s response states that

“[d]efendants’ assertion [that] my claim arises under Bivens is simply untrue” and

plaintiff further points to several references to RLUIPA in his Complaint to support his

statement. In their reply, defendants therefore argue that the court should dismiss

plaintiff’s claim to any extent it arises under Bivens due to plaintiff’s statement

apparently conceding that his claim does not so arise.

The court notes that plaintiff’s response to defendants’ motion repeatedly asserts

that plaintiff’s claim arises under RLUIPA. Plaintiff’s Complaint, including plaintiff’s claim

itself, references RLUIPA throughout. Further, plaintiff’s arguments contained in his

response relate to RLUIPA and RLUIPA case law. Accordingly, based on a liberal

reading of plaintiff’s complaint, the court finds that plaintiff’s claim arises under RLUIPA. 

The court’s analysis will proceed accordingly.

II. Failure to State a Claim

RLUIPA requires that no government shall impose a substantial burden on the

religious exercise of a person confined to an institution. 42 U.S.C. § 2000cc-1(a). 

“A plaintiff bears the initial burden of establishing ‘the prima facie existence’ of a

substantial burden of his religious exercise.” Vigil v. Jones, No. 09-cv-01676-PAB-KLM,

2011 WL 1480679, at *3 (Mar. 15, 2011) (quoting Warsoldier v. Woodford, 418 F.3d

989, 995 (9th Cir. 2005)). To survive a motion to dismiss, a RLUIPA complaint must

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adequately allege the following: (1) that the plaintiff wishes to engage in a religious

exercise; (2) that this wish is motivated by a sincerely held belief; and (3) that the

exercise is subject to a substantial burden imposed by the government. See

Abdulhaseeb v. Calbone, 600 F.3d 1301, 1312 (10th Cir. 2010).

As to the second requirement, plaintiff’s Complaint alleges that his sincere

religious beliefs dictate that the injection of pharmaceuticals is forbidden. Plaintiff goes

into some detail as to the sincerity of his belief and the basis for his belief. Plaintiff

further alleges that he as refused the injections several times in the past which resulted

in forced injections. 

While one could question the sincerity of plaintiff’s beliefs, evaluating the sincerity

of plaintiff’s beliefs is “almost exclusively a credibility assessment,” and conclusively

determining whether his plaintiff’s beliefs are sincere would be “premature at this stage.” 

Kay v. Bemis, 500 F.3d 1214, 1219 (10th Cir. 2007) (noting that the sincerity of a

plaintiff’s purported beliefs “can rarely be determined on a motion to dismiss”). 

The first and third requirements essentially merge in a situation such as this

wherein plaintiff is not seeking to engage in particular activity, but rather wishes not to

engage in an activity required by defendants. In such a situation, government action

may impose a substantial burden by “requir[ing] participation in an activity prohibited by

a sincerely held religious belief.” Abdulhaseeb, 600 F.3d at 1315. “The practice

burdened need not be central to the adherent’s belief system, but the adherent must

have an honest belief that the practice is important to his free exercise of religion.” Id.

at 1316.

Plaintiff’s Complaint alleges that PPD injections were forced upon him on several

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occasions, and that forced injections will continue. While the frequency of the injections

is not substantial, plaintiff alleges that each injection has a substantial effect on his

religious well-being. Based on the totality of plaintiff’s allegations, the court finds that

plaintiff has alleged the existence of a substantial burden on his religious exercise. 

RLUIPA provides that a substantial burden on an individual’s religious exercise is

permissible only if the government demonstrates that the burden (1) is in furtherance of

a compelling government interest; and (2) is the least restrictive means of furthering that

interest. 42 U.S.C. § 2000cc-1(a). Defendants cite Johnson v. Sherman, No. CIV S-04-

2255, 2007 WL 1029856 (E.D. Cal. Apr. 2, 2007), and argue it is directly applicable to

the compelling interest requirement. Defendants also argue that Johnson shows that

plaintiff’s suggested less restrictive alternative to tuberculosis testing, namely a chest xray, is not a valid alternative.

The court finds that Johnson is not relevant to this matter at this time. While the

facts of Johnson are similar, the procedural posture is not. The motion before the

Johnson court was a motion for preliminary injunction. Id., at *1. As part fo their

response to the motion for preliminary injunction, the government defendants submitted

a declaration from the Chief Medical Officer of the state prison where the plaintiff was

incarcerated. Id. The court relied heavily on this declaration, along with several other

exhibits, in making its determination. See id., *3-4.

Here, the court must make its determination based on plaintiff’s Complaint. See

Gee, 627 F.3d at 1186 (stating that the sufficiency of a complaint must rest on its

contents). Unlike the court in Johnson, this court does not properly have additional

documents before it for its consideration. Absent their reliance on Johnson, defendants

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provide no argument that they have met their burden to show a compelling interest or

least restrictive means.

WHEREFORE, for the foregoing reasons, it is hereby

RECOMMENDED that Plaintiff’s Motion for Injunctive Relief (Docket No. 3) be

DENIED AS MOOT. It is further

RECOMMENDED that Defendants’ Motion to Dismiss (Docket No. 34) be

GRANTED IN PART insofar as it seeks dismissal of any Bivens claims. It is further

RECOMMENDED that Defendants’ Motion to Dismiss (Docket No. 34) be

DENIED IN PART insofar as it seeks dismissal of any RLUIPA claims.

NOTICE: Pursuant to 28 U.S.C. § 636(b)(1)(C) and Fed. R. Civ. P. 72(b)(2),

the parties have fourteen (14) days after service of this recommendation to serve

and file specific written objections to the above recommendation with the District

Judge assigned to the case. A party may respond to another party’s objections

within fourteen (14) days after being served with a copy. The District Judge need

not consider frivolous, conclusive, or general objections. A party’s failure to file

and serve such written, specific objections waives de novo review of the

recommendation by the District Judge, Thomas v. Arn, 474 U.S. 140, 148-53

(1985), and also waives appellate review of both factual and legal questions. 

Makin v. Colo. Dep’t of Corr., 183 F.3d 1205, 1210 (10th Cir. 1999); Talley v. Hesse,

91 F.3d 1411, 1412-13 (10th Cir. 1996).

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Date: July 17, 2012 s/ Michael J. Watanabe 

Denver, Colorado Michael J. Watanabe

United States Magistrate Judge

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