Dorman v. Chaplain's Office BSO

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO. 18-61392-CIV-ALTMAN/Hunt

BRADLEY DORMAN,

Plaintiff,

v.

BSO CHAPLAIN’S OFFICE, et al.,

Defendants.

________________________________/

ORDER

On June 20, 2018, the Plaintiff, Bradley Dorman (“Dorman”), filed a pro se complaint

under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act

(“RLUIPA”), 42 U.S.C. §§ 2000cc, et seq. (“Complaint”) [ECF No. 1]. The Complaint alleges

that, while Dorman was housed at the Broward County Main Jail (“the Jail”) in 2018, two

“employees of the BSO Chaplins [sic] Office”—Chaplains Aronofsky and Jordan—denied him an

opportunity to participate in the Passover holiday. See generally Complaint. Specifically, Dorman

claims that he was denied the ability to partake of a “proper [Passover] diet and associated religious

ceremonie [sic]” in violation of the “First Amendment to the United States Constitution” and

RLUIPA. Complaint ¶¶ 18-19. In support, Dorman describes a series of messages he exchanged

with Chaplain Jordan, in which he says the Chaplain informed him that he had missed the February

14, 2018 deadline to register for the Passover service. Complaint ¶¶ 6-7.1

1 The Complaint avers that the Jail posted “no notice” of its registration requirement “in the Kosher

holiday menu section” of the Jail’s kiosk computer. Complaint ¶ 15. But the Defendants have

attached a copy of the very notice they say was posted. See Motion to Dismiss [ECF No. 53 at 11].

In his response, discussed in more detail below, Dorman apparently abandons his allegation that

no notice was posted. Instead, his response argues only that he was “unaware of such posting on

Notably, although Dorman says he was “successfully added to the Passover service and

diet” at the Jail for Passover in 2017, he concedes that he failed to notify Jail officials of his

intention to participate in Passover services in 2018 until April 1, 2018—two days after Passover

had already begun. Complaint ¶¶ 1, 10-11.2 By contrast, in 2017, Dorman notified Jail officials of

his desire to participate in services on March 6th and again on April 3rd. Complaint ¶ 1.3

THE PROCEDURAL HISTORY

Pursuant to Administrative Order 2019-2, the Clerk referred this case to United States

Magistrate Judge Lissette M. Reid for a ruling on all pre-trial, non-dispositive matters and for a

report and recommendation on any dispositive questions [ECF No. 29].

After Dorman unsuccessfully appealed several court orders, the Defendants jointly filed,

on July 5, 2019, a Motion to Dismiss the Complaint [ECF No. 53], to which Dorman responded

by filing a “Motion for Summary Judgment”—a motion the Court will construe as his response to

the Defendants’ Motion to Dismiss.4 On January 2, 2020, Judge Reid issued a Report and

Recommendation (“R&R”), in which she suggested that the Complaint be dismissed with

prejudice for failing to state a claim upon which relief can be granted [ECF No. 67].

the kiosk as all notifications that are important are printed and placed around the kiosk.” See

Dorman’s Motion for Summary Judgment [ECF No. 55 at ¶ 3]. Dorman then suggests that, rather

than having posted its notice on the kiosk computer, the Jail should have printed it. Id. Dorman

also unpersuasively contends that the kiosk—which warns inmates that “[i]nmate information

changes quickly . . . [and] may not reflect the current information . . . and should not be relied upon

for any type of legal action”—somehow vitiated the registration requirement altogether. Id.

2 In 2018, Passover began on March 30th. Id.

3 In 2017, Passover began on April 10th. Id.

4 Dorman’s “Motion for Summary Judgment” does not contain a “separate and contemporaneously

filed and served Statement of Material Facts,” as required by Local Rule 56.1. Nor does Dorman

support any of his positions with citations to materials in the record. Instead, Dorman’s “Motion”

responds directly to the arguments the Defendants advanced in their Motion to Dismiss.

On January 28, 2020, the Clerk docketed Dorman’s “Objection” to Judge Reid’s R&R

[ECF No. 70]. The “Objection,” though, is problematic for two reasons. First, it is untimely: Judge

Reid’s R&R warned the Plaintiff that, if he wished to file objections to the R&R, he must do so

“within fourteen days of receipt of a copy of the Report.” R&R at 13-14. The R&R also warned

Dorman that his failure to file timely objections may prevent the Court from engaging in a de novo

review of the R&R. Id. Judge Reid issued her R&R on December 31, 2019. Pursuant to Federal

Rule of Civil Procedure 6(d), therefore, Dorman had until January 17, 2020 to file his objections.

See FED. R. CIV. P. 6(d) (adding three days for service by mail). But Dorman’s “Objection” bears

a postmarked date of January 23, 2020—making it three days late. And Dorman offers absolutely

no explanation for his failure to timely object to the R&R.5

Second, the “Objection” does nothing more than “restate[] the arguments previously

presented” and “summarize[] what has been presented before.” See Vilme v. McNeil, No. 08-

23138-CIV, 2010 WL 430762, at *1 (S.D. Fla. Feb. 5, 2010) (citing VanDiver v. Martin, 304 F.

Supp. 2d 934, 937 (E.D. Mich. 2004)). Indeed, Dorman’s “Objection” simply reiterates the very

same arguments Judge Reid has already considered and rejected: (1) that the Chaplain’s office told

Dorman that he was “too early” to sign up for Passover 2017 when he sent the office an email in

March of 2017; (2) that his “timely” registration for Passover 2017 should have automatically

rendered timely his 2018 registration, even though the latter occurred two days after the holiday

had already begun; and (3) that his failure to review the notice requirement on the Jail’s kiosk

computer absolved him of any obligation to comply with its terms. See generally Objection [ECF

5 Nor does Dorman ever suggest that his “Objection” would have been timely under the “prisoner

mailbox rule,” by which a pro se prisoner’s filing is deemed “filed” as of the date “he delivered

the [document] to prison authorities for forwarding to the District Court.” Houston v. Lack, 487

U.S. 266, 270 (1988).

No. 70]. Because Dorman’s “Objection” is untimely—and since it does nothing more than restate

the arguments Judge Reid has already rejected—the Court may disregard the “Objection” and

review Judge Reid’s R&R for clear error. See Vilme, 2010 WL 430762 at *1 (recognizing that

objections are “insufficient” when petitioner “raises the exact same arguments” already presented

to magistrate judge).

THE LAW

When a magistrate judge’s “disposition” has been objected to, district courts must review

that disposition de novo. FED. R. CIV. P. 72(b)(3). But when, as here, no party has timely objected,

“the court need only satisfy itself that there is no clear error on the face of the record in order to

accept the recommendation.” FED. R. CIV. P. 72 advisory committee’s notes (citation omitted).

Although Rule 72 is silent on the applicable standard of review when neither party has objected to

the magistrate judge’s report and recommendation, the Supreme Court has acknowledged that

Congress’ intent was to require de novo review only where objections have been properly filed—

and not when neither party objects. See Thomas v. Arn, 474 U.S. 140, 150 (1985) (“It does not

appear that Congress intended to require district court review of a magistrate [judge]’s factual or

legal conclusions, under a de novo or any other standard, when neither party objects to those

findings.”). In any event, the Eleventh Circuit has been clear that “[f]ailure to object to the

magistrate [judge]’s factual findings after notice precludes a later attack on these findings.” Lewis

v. Smith, 855 F.2d 736, 738 (11th Cir. 1988) (citing Nettles v. Wainwright, 677 F.2d 404, 410 (5th

Cir. 1982)).

ANALYSIS

The Court has reviewed the R&R, the record, and the governing law and can find no clear

error in the R&R. Moreover, in the interest of justice, the Court has separately conducted a de novo

review of both the entire record and the applicable law—and, even under that standard, likewise

concurs with Judge Reid’s recommendation.

I. RLUIPA’s Legal Framework

“RLUIPA is the latest of long-running congressional efforts to accord religious exercise

heightened protection from government-imposed burdens, consistent with this Court’s

precedents.” Cutter v. Wilkinson, 544 U.S. 709, 714 (2005) (page numbers omitted). “Less

sweeping than” the better-known Religious Freedom Restoration Act (“RFRA”)—which Congress

had passed ten years earlier—and “invoking federal authority under the Spending and Commerce

Clauses,” see id. at 715, RLUIPA provides (as relevant here) that “[n]o [state or local] government

shall impose a substantial burden on the religious exercise of a person residing in or confined to

an institution,” unless the government can show that the burden furthers “a compelling

governmental interest” and does so by “the least restrictive means.” § 2000cc-1(a)(1)-(2). RLUIPA

defines “religious exercise” to include “any exercise of religion, whether or not compelled by, or

central to, a system of religious belief.” § 2000cc-5(7)(A). This aspect of RLUIPA applies

whenever “the substantial burden [on religious exercise] is imposed in a program or activity that

receives Federal financial assistance,” or when “the substantial burden affects, or removal of that

substantial burden would affect, commerce with foreign nations, among the several States, or with

Indian tribes.” § 2000cc-1(b)(1)-(2). “A person may assert a violation of [RLUIPA] as a claim or

defense in a judicial proceeding and obtain appropriate relief against a government.” § 2000cc-

2(a).

Put simply, RLUIPA “imposes an initial burden on the plaintiff ‘to prove that the

challenged law, regulation, or practice substantially burdens his exercise of religion.’” R&R at 8

(citations omitted). If the Plaintiff satisfies this burden, then the Defendants must show that the

law, regulation, or practice “is the least restrictive means of furthering a compelling governmental

interest.” Id. And, because RLUIPA mandates “a ‘more searching standard’ of review of free

exercise burdens than the standard used in parallel constitutional claims,” like the First

Amendment, the Court must begin its analysis here. See McCree v. Pocock, No. CIVA

1:06CV1279 TWT, 2007 WL 1810143, at *2 (N.D. Ga. June 19, 2007) (quoting Lovelace v.

Lee, 472 F.3d 174, 186 (4th Cir.2006)); see also Smith v. Allen, 502 F.3d 1255, 1277 n.5 (11th Cir.

2007) (“If a prison’s regulation passes muster under RLUIPA . . . it will perforce satisfy the

requirements of the First Amendment, since RLUIPA offers greater protection to religious exercise

than the First Amendment offers.”) (citation omitted), abrogated on other grounds by Sossamon

v. Texas, 563 U.S. 277 (2011).

In passing RLUIPA, Congress intended to “secure redress for inmates” who encountered

“frivolous or arbitrary” barriers to their right to freely exercise their religion. Cutter, 544 U.S. at

717 (quoting 146 Cong. Rec. 16698, 16699 (2000) (joint statement of Sen. Hatch and Sen.

Kennedy on RLUIPA); see also Cutter, 544 U.S. at n.5 (citing examples of “frivolous or arbitrary”

barriers from correctional facilities across the country). But lawmakers also “anticipated [] that

courts entertaining [religious exercise RLUIPA complaints] would accord ‘due deference to the

experience and expertise of prison and jail administrators.’” Cutter, 544 U.S. at 717 (quoting S.

Rep. No. 103-111, p. 10 (1993)). In other words, in passing RLUIPA, Congress did not mean to

prohibit all custodial restrictions on religious exercise. Id. at 716. Instead, Congress sought to

proscribe only those “egregious and unnecessary” restraints that “substantially burden” an

inmate’s religious rights. Id.

II. The Passover Registration Requirement Does Not Impose a Substantial Burden

Dorman challenges the Jail’s 2018 requirement that any inmate who wished to participate

in the Passover service had to notify Jail officials of this wish at least 45 days before the start of

the holiday—in other words, by February 14, 2018. See generally Complaint. The Defendants

contend that this registration requirement did not abridge—which is to say, did not impose a

substantial burden on—Dorman’s RLUIPA and First Amendment rights. See Motion to Dismiss

at 6-8. And, the Defendants add, even if this requirement did somehow create a substantial burden,

Dorman did not notify Jail officials of his intention to participate in the service until several days

after Passover had begun (and two days after the Seder service had been held). Id. In this respect,

the Defendants point out that, in 2018, the Passover “Seder meal and service” occurred on March

30, 2018. Id. at 8. Because Dorman did not request anything at all until April 1, 2018 (two days

later), his request was—putting aside the Jail’s 45-day notice rule—effectively impossible to

satisfy.

The Court cannot conclude that the Jail’s regulation—which it posted on a kiosk computer

Dorman and others used—was either frivolous or arbitrary. Cutter, 544 U.S. at 717. Nor, on this

record, can the Court say that it was the kind of “egregious and unnecessary” restraint that would,

in the ordinary course, “substantially burden” an inmate’s religious rights. Id. at 716. As the

Supreme Court has explained, RLUIPA must be applied with “due deference to the experience and

expertise of prison and jail administrators in establishing necessary regulations and procedures to

maintain good order, security, and discipline, consistent with consideration of costs and limited

resources.” Id. at 723. Federal courts, therefore, may not “elevate [the] accommodation of religious

observances over an institution’s need to maintain order and safety.” Id.

The Eleventh Circuit has likewise defined a “substantial burden” as an imposition of

“significant pressure which directly coerces the religious adherent to conform his or her behavior”

or that “tends to force adherents to forego religious precepts or . . . mandates religious conduct.”

See Midrash Sephardi, Inc. v. Town of Surfside, 366 F.3d 1214, 1227 (11th Cir. 2004). To qualify

as a substantial burden, then, the government’s action must “significantly hamper one’s religious

practice.” Smith, 502 F.3d at 1277.

Applying these or similar standards, federal courts throughout the country have

consistently refused to find RLUIPA violations in far more onerous circumstances than are

presented by the Jail’s 45-day registration requirement here. See Aiello v. West, 207 F. Supp. 3d

886, 892 (W.D. Wis. 2016) (90-day advance notice requirement for inmates to request Seder plate

did not impose substantial burden under RLUIPA); see also Ghashiyah v. Litscher, 278 F. App’x

654, 658 (7th Cir. 2008) (finding frivolous the inmate’s contention that his religious rights were

substantially burdened under RLUIPA by the requirement that he fill out a form to obtain religious

property); Woods v. Evatt, 876 F. Supp. 756, 764 (D.S.C. 1995), aff’d, 68 F.3d 463 (4th Cir. 1995)

(requirement to register as a Muslim prior to participating in certain religious services was not a

substantial burden on inmates’ rights to practice their religion); Pasco v. Donald, No. 5:06-CV-

141(CAR), 2007 WL 2874700, at *3 (M.D. Ga. Sept. 27, 2007) (prison’s failure to provide meals

that strictly complied with prisoners’ religious dietary restrictions was only a “very minor

inconvenience” and not a substantial burden); Guillory v. Fischer, No. 9:12-CV-00280 LEK, 2013

WL 1294626, at *14 (N.D.N.Y. Mar. 7, 2013) (“[A] single infringement of a plaintiff’s right to

attend a religious service is not a substantial burden . . . [i]ndeed, it is doubtful if even two acts of

infringement would be sufficient to surmount the substantial burden threshold”) (citing cases);

Ahdom v. Etchebehere, No. 1:13-cv-01623-DAD-GSA, 2017 WL 8793335, at *1 (E.D. Cal. Dec.

12, 2017) (forcing prisoner to miss one day of Ramadan meals did not constitute substantial burden

on prisoner’s religious practice); McKenzie v. Ellis, No. 10-cv-1490-LAB (AJB), 2012 WL

4050297, at *5 (S.D. Cal. Sept. 13, 2012) (four-day denial of religious diet did not substantially

burden prisoner’s religious practice); Greenberg v. Hill, No. CIV.A. 2:07-CV-1076, 2009 WL

890521, at *7 (S.D. Ohio Mar. 31, 2009) (missing two Seder meals over the course of several years

was an isolated occurrence that did not qualify as a substantial burden under RLUIPA); Resnick v.

Adams, 348 F.3d 763, 768-770 (9th Cir. 2003) (requirement that inmate sign application to receive

kosher meals did not violate RLUIPA); Waff v. Reisch, No. CIV 07-4166, 2010 WL 3730114, at

*10 (D.S.D July 30, 2010) (requirement that inmate complete a form to re-enroll in a kosher diet

plan was not a substantial burden).

In sum, the Jail’s requirement that inmates register for Passover meals at least 45 days

before the holiday did not violate Dorman’s RLUIPA rights. As the Supreme Court has recognized,

correctional institutions have an important obligation to “maintain good order, security, and

discipline.” Cutter, 544 U.S. at 723 (citation omitted). Fulfilling this obligation requires that they

deploy the “expertise of correctional officials” who can “devise reasonable solutions to problems”

while “maintaining safety and order.” Florence v. Bd. of Chosen Freeholders of Cnty. of

Burlington, 566 U.S. 318, 326 (2012). And the Supreme Court has admonished lower courts to

remember that jail officials wield “substantial discretion” in carrying out these objectives. Id.

To hold a religious service—like the Passover service at issue here—jail officials must

determine, in the first instance, how many inmates will be participating. This basic inquiry, in turn,

implicates a host of other important practical considerations, such as: how many guards will be

needed; how will the prisoners be transferred to the holiday service; how many meals must be

ordered; how many seats, tables, and units of dish- and silverware must be commissioned; and

what the total cost of the service will be. And this does not begin to take account of the many

security concerns that might arise in a group service—including, among many other things, any

separation orders that might be in place, under the terms of which some prisoners may be

prohibited from sitting next to one another. Indeed, where the separation arises, not because two

prisoners are co-defendants, but because they are members of rival gangs, because they have a

history of violence towards one another, or because one is cooperating (or has cooperated) against

another, these separation orders may well raise acute security, logistical, and operational concerns.

And, it almost goes without saying, the Jail must do all this for every religious holiday—a

monumental task it must effectuate in addition to its continuous obligation to operate the Jail

effectively.

These specific logistical concerns, to be sure, are not (strictly speaking) in the record before

the Court. But the Court need not, in its 12(b)(6) analysis—or elsewhere—blind itself to the

commonly-understood and well-established reality that correctional facilities routinely place

“limitations on the exercise of constitutional rights” because of “both [] the fact of incarceration

and from valid penological objective[s]—including deterrence of crime, rehabilitation of

prisoners, and institutional security.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).6

More fundamentally, even if the Jail’s policy had somehow violated RLUIPA, because

Dorman did not request anything at all until after Passover had begun—and, in fact, until after the

conclusion of the Seder meal and service on March 30, 2018—the Jail could not have timely

complied with his request in any event. Put simply, Dorman’s failure to timely notify Jail officials

of his intention to participate in Passover services precludes him from stating a viable RLUIPA—

6 In addition to “maintain[ing] good order, security, and discipline,” the Jail was of course entitled,

on the day of Dorman’s request, to “look into the sincerity of [Dorman’s] religious belief[] in

conjunction with his request for and provision of special dietary accommodations for [Passover].”

Hathcock v. Cohen, No. 05-60019-CIV, 2007 WL 9770910, at *10 (S.D. Fla. June 11, 2007) aff’d

sub nom. Hathcock v. Cohen, 287 F. App’x 793 (11th Cir. 2008) (no substantial burden where

inmate caused delay by failing to provide information chaplain needed to verify sincerity of

religious belief before approving inmate’s special dietary accommodation). Dorman’s failure to

notify Jail officials of his intention to participate in the holiday undeniably precluded the Jail from

engaging in this inquiry, which might reasonably have lasted several days or more.

and, by extension, a plausible First Amendment—claim.7

Dorman’s “Objection” does nothing to alter this conclusion.8 First, his “early” filing in

2017 does not establish that the Jail’s 45-day deadline in 2018 imposed upon him a substantial

burden. Indeed, whether the Jail had a shorter registration requirement (or no registration

requirement at all) in 2017, the question would still be whether the 2018 requirement imposed a

substantial burden. And the Court has already concluded that it did not. In either event, because in

2018 Dorman did not submit his request until after the Passover holiday had begun, Dorman cannot

state a plausible RLUIPA claim—irrespective of what happened in 2017.

Second, Dorman cites no case for the illogical proposition that his 2017 registration should

automatically register him for every subsequent holiday service—presumably in perpetuity. As the

Court has explained, correctional facilities have compelling (and obvious) practical reasons for

requiring inmates to register for a service in advance of the holiday—both because they must know

how many inmates will be participating and, no less significantly, because they must know

precisely which ones.

Third, the Jail certainly has an obligation to post registration requirements publicly. But an

inmate cannot argue these requirements by simply claiming—as Dorman does here—that he did

not see them. Otherwise, any inmate could state a plausible RLUIPA claim by refusing to look up

7 In any event, even if the Jail’s 45-day registration requirement had substantially burdened

Dorman’s RLUIPA rights, the individual Defendants would nevertheless be entitled to qualified

immunity. After all, there is no case—either in this Circuit or elsewhere—that clearly establishes

the illegality of the Defendants’ decision to implement a 45-day registration requirement. See Hoyt

v. Cooks, 672 F.3d 972, 977 (11th Cir. 2012) (explaining that qualified immunity offers complete

protection for government officials sued in their individual capacities when their conduct violates

no clearly established statutory or constitutional rights of which a reasonable person would have

known).

8 As the Court has already explained, see The Procedural History, supra, the Court need not even

address this “Objection” at all.

or around him—or, more likely, by disingenuously alleging that, whatever the breadth of the

dissemination, for whatever reason, he never noticed it.

In his response, Dorman does not deny that the Jail posted the notice in the Jail kiosk

computer that he and the other inmates routinely used. Instead, he contends that certain notices,

like the one at issue here, are simply more important than others. [ECF No. 55 at ¶ 3]. And he

argues that, for those more-important notices, the Jail has an obligation both to post them online

and to print them. Id. But to require the Jail, as Dorman suggests, to print out only certain kinds of

postings—indeed, to single out as especially significant some Jail notices over others—would

unjustifiably abridge the “due deference” the Supreme Court has instructed district courts to

employ with regard “to the experience and expertise of prison and jail administrators.” Cutter, 544

U.S. at 717.9

III. Leave to Amend

Federal courts should “freely give leave [to amend] when justice so requires.” FED. R. CIV.

P. 15(a). “A district court need not, however, allow an amendment (1) where there has been undue

delay, bad faith, dilatory motive, or repeated failure to cure deficiencies by amendments previously

allowed; (2) where allowing amendment would cause undue prejudice to the opposing party; or

(3) where amendment would be futile.” Bryant v. Dupree, 252 F.3d 1161, 1163 (11th Cir. 2001);

accord Foman v. Davis, 371 U.S. 178, 182 (1962). Because Dorman failed to register for the

Passover meals until after Passover had already begun—and given that he did not register for the

service until after the service had already taken place—he cannot state a plausible claim for relief.

In these circumstances, any “amendment would be futile.” Bryant, 252 F.3d at 1163.

9 Here, again, the Court must remain mindful of the Supreme Court’s admonition that jails enjoy

“substantial discretion” in carrying out their objectives. Florence, 566 U.S. at 326.

Accordingly, the Court hereby ORDERS AND ADJUDGES as follows:

1. Judge Reid’s R&R [ECF No. 67] is ACCEPTED AND ADOPTED.

2. The Defendants’ Motion to Dismiss [ECF No. 53] is GRANTED.

3. The Complaint [ECF No. 1] is DISMISSED with prejudice for failure to state a claim.

4. The Clerk of the Court is instructed to CLOSE this case, and any other pending

motions are DENIED as moot.

DONE AND ORDERED in Fort Lauderdale, IC February 2020.

ROYK.ALTMAN ———

UNITED STATES DISTRICT JUDGE

cc: Bradley Dorman, pro se

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