United States District Court, D. Connecticut
RULING ON MOTION TO REOPEN AND AMEND
A. BOLDEN UNITED STATES DISTRICT JUDGE
Sabir (“Plaintiff” or “Mr. Sabir”)
has moved the Court to reopen his case and accept his Amended
Complaint. Mot. to Amend, ECF No. 15.
following reasons, the motion is GRANTED.
The Amended Complaint is DISMISSED in part
but may proceed against the two defendants in their official
capacities for injunctive and declaratory relief.
FACTUAL AND PROCEDURAL BACKGROUND
8, 2017, Mr. Sabir, an inmate currently confined at the
Federal Correctional Institution in Danbury, Connecticut
(“FCI Danbury”), filed a Complaint pro
se under Bivens v. Seven Unknown Named Agents of
Fed. Bureau of Narcotics, 403 U.S. 388 (1871), and 28
U.S.C. §§ 1331 and 1343(a)(3) against Warden D.K.
Williams and Federal Bureau of Prisons (“BOP”)
Director Thomas Kane (together “Defendants”) in
their official capacities as employees of the BOP for
injunctive and declaratory relief. Compl., ECF No. 1. Mr.
Sabir claims that Defendants violated his rights under the
Free Exercise Clause of the First Amendment to the United
States Constitution, the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), and the
Religious Freedom Restoration Act (“RFRA”) by
prohibiting him and other Muslim inmates from engaging in
group prayer outside the chapel at FCI Danbury. See
Id. at 9. On June 29, 2017, the Court dismissed the
Complaint without prejudice because Mr. Sabir failed to pay
the required $400 filing fee. See ECF Nos. 7, 8.
21, 2017, Mr. Sabir moved to reinstate his Complaint after
paying the required filing fee. Mot. to Reopen, ECF No. 9.
The Court granted Mr. Sabir's motion, but nevertheless
dismissed the Complaint under 28 U.S.C. § 1915A for
failure to state a claim upon which relief could be granted.
Ruling on Mot. to Reopen and Initial Review Order
(“Initial Review Order”), ECF No. 11. The Court
ruled that the United States Supreme Court's decision in
Bivens, 403 U.S. at 389, does not authorize suits
against federal officials in their official capacities for
injunctive or declaratory relief. See Initial Review
Order at 4-5 (citing Tyus v. Newton, 13 Civ. 1486
(SRU), 2015 WL 5306550, *5 (D. Conn. Sep. 10, 2015),
Holliday v. Augustine, 14 Civ. 855 (SRU), 2015 WL
136325, *3 (D. Conn. Jan. 9, 2015), and Khan v. United
States, 217 F.Supp.2d 409, 413 (E.D.N.Y. 2003)).
Moreover, even if Mr. Sabir had sued Defendants for monetary
damages, his claims were nonetheless barred by sovereign
immunity. See Id. at 5 (citing Pimental v.
Deboo, 411 F.Supp.2d 118, 125-26 (D. Conn. 2006)). Thus,
the Court directed the Clerk to close the case.
REVIEWABILITY OF AMENDED COMPLAINT
November 30, 2017, Mr. Sabir filed a second motion to re-open
his case, ECF No. 15, and attached an Amended Complaint, ECF
No. 15-1. Mot. to Amend Compl., ECF No. 15. Rule 15(a) of the
Federal Rules of Civil Procedure provides:
(1) A party may amend its pleading once as a matter of course
within 21 days after serving it, or if the pleading is one to
which a responsive pleading is required, 21 days after
service of a responsive pleading or 21 days after service of
a motion under Rule 12(b), (e), or (f), whichever is earlier.
(2) In all other cases, a party may amend its pleading only
with the opposing party's written consent or the
court's leave. The court should freely give leave when
justice so requires.
Amended Complaint, Mr. Sabir raises the same three claims
against the same two defendants and seeks the same relief:
(1) a declaration that Defendants' acts and omissions
“violated [his] rights under the Constitution of the
United States;” and (2) “[a] preliminary
[i]njunction ordering Defendants . . . to rescind Program
Statement 5360.09 and the related Institutional Supplement
5360.09 F Section 3.b.2 restricting group prayer to
individual prayer or in pairs; and that they allow prayer in
groups for the required prayers five times daily wherever
[Mr. Sabir] happens to be at the time prayer becomes
due.” Am. Compl. ¶¶ 41-42. He no longer,
however, brings his claim under Bivens, 403 U.S. at
389. Instead, he now claims that the Court may provide him
with declaratory and injunctive relief under the
Administrative [Procedure] Act (“APA”), 5 U.S.C.
§ 701 et seq., the Declaratory
Judgment Act (“DJA”), 28 U.S.C. § 2201, and
28 U.S.C. § 1331. Am. Compl. ¶ 1.
waives the sovereign immunity of the United States for claims
against federal officers that seek non-monetary relief.
Lipscomb v. Hufford, 14 Civ. 6562 (NSR), 2017 WL
3267732, *6 (S.D.N.Y. Jul. 28, 2017); see also Polanco v.
U.S. Drug Enforcement Administration, 158 F.3d
647, 650-52 (2d Cir. 1998) (court should have construed
complaint seeking only injunctive relief as arising under
APA, not as Bivens action); Garrett v.
Ask-Carlson, No. 15 CIV. 0723 PAC JCF, 2015 WL 5511914,
at *2 (S.D.N.Y. Sept. 18, 2015) (prisoner's request for
restoration of visitation and commissary privileges is
available remedy under APA); Berkun v. Terrell, 12
Civ. 706, 2012 WL 3233897, *3 (E.D.N.Y. Aug. 6, 2012)
(injunctive relief available under APA where inmate alleged
warden of federal prison violated First Amendment); Kole
v. Lappin, 551 F.Supp.2d 149, 153 (D. Conn. 2008)
(reviewing prisoner's civil rights claims against federal
officials in official capacities for injunctive relief).
Although the DJA does not provide an independent cause of
action or confer subject matter jurisdiction on the Court, it
does “provide a form of relief for a substantive
violation of law.” Schick v. Apker, 07 Civ.
5775 (SHS) (DF), 2009 WL 2016933, *6 (S.D.N.Y. Mar. 5, 2009);
see also Gowanus Indus. Park, Inc. v. Hess Corp., 10
Civ. 5522 (JG) (JO), 2012 WL 273657, *17 (E.D.N.Y. Jan. 31,
2012) (DJA “authorizes a federal district court, in a
case of ‘actual controversy, ' to ‘declare
the rights and other legal relations of any interested party
seeking such declaration, whether or not further relief is or
could be sought”) (quoting § 2201). Because Mr.
Sabir is no longer pursuing a Bivens action and is
now suing federal officials in their official capacities for
injunctive and declaratory relief under the APA and DJA, the
Court now has jurisdiction under § 1331 to accept and
review his amended complaint under 28 U.S.C. § 1915A.
Therefore, in the interests of justice, the Court will
GRANT Mr. Sabir's motion to reopen the
case and review his amended complaint.
FACTUAL ALLEGATIONS IN AMENDED COMPLAINT
October 9, 2014, Mr. Sabir and other Muslim inmates were
allegedly engaging in group prayer in a recreational area of
FCI Danbury known as the auditorium. Compl. at ¶ 11.
Near the conclusion of the prayer, the Amended Complaint
contends that an officer entered the auditorium and
confronted members of the group. Id. at ¶¶
12‒13. He allegedly informed the inmates that group
prayer was not permitted outside the chapel and warned them
that violation of that policy could result in disciplinary
action. Id. at ¶ 14. Shortly thereafter,
Lieutenant North allegedly entered the auditorium.
Id. at ¶ 15. The two officials allegedly
informed the inmates that BOP policy restricted group prayer
outside the chapel to two persons and that larger groups of
inmates could only perform group prayer inside the chapel,
regardless of their religious beliefs. Id. at ¶
Amended Complaint alleges that members of the group informed
North that their policy prohibiting group prayer outside the
chapel violated the First Amendment, the RLUIPA, and the
RFRA. Id. at ¶ 16. They also allegedly informed
the officials that their religion required them to pray in
groups five times each day, and the chapel was not available
to them for all five services. Id. at ¶ 21.
North allegedly agreed to permit three inmates to pray
together in the auditorium at that time but warned that
future violations of the policy would result in disciplinary
sanctions. Id. at ¶ 17.
chapel at FCI Danbury is allegedly located in the main
recreation area and is accessible to inmates only when chapel
staff are present. Compl. ¶ 22. Recreation staff, it is
alleged, strictly enforce the group prayer policy in other
recreational areas of the prison, including the recreation
yard, weight room, gymnasium, bathroom, and video and music
rooms. Id. at ¶¶ 22-23. In some areas,
however, including the medical unit, food services area,
housing units, and laundry facilities, the group prayer
policy is allegedly intermittently tolerated depending on
which staff members are present. Id. at ...