Jack Morgan v. BOP

In the

United States Court of Appeals

For the Seventh Circuit

____________________

No. 22-2731

JACK WILLIAM MORGAN,

Plaintiff-Appellant,

v.

FEDERAL BUREAU OF PRISONS and ANDREW CIOLLI,

Defendants-Appellees.

____________________

Appeal from the United States District Court for the

Northern District of Illinois, Western Division.

No. 22 C 50080 — Iain D. Johnston, Judge.

____________________

ARGUED OCTOBER 30, 2024 — DECIDED FEBRUARY 28, 2025

____________________

Before SCUDDER, ST. EVE, and KIRSCH, Circuit Judges.

ST. EVE, Circuit Judge. Jack William Morgan purchased a

turkey log from the commissary at Federal Correctional Insti-

tution (FCI) Thomson in May 2021, in an apparent violation

of the prison’s kosher diet program. As a result of his pur-

chase, the institutional chaplain suspended Morgan’s ap-

proval for a kosher diet for thirty days. Morgan says that the

suspension forced him to choose between starving and violat-

ing his religious beliefs as a Messianic Jew—and he chose

2 No. 22-2731

starvation for thirty days. After exhausting his administrative

remedies, he sued the Federal Bureau of Prisons (“BOP”) and

the prison warden, Andrew Ciolli, in federal court, seeking an

order requiring the BOP to change its dietary policies and

monetary damages under the Religious Freedom Restoration

Act, 42 U.S.C. § 2000bb (“RFRA”). The BOP has since trans-

ferred Morgan to a new BOP facility.

On preliminary review pursuant to 28 U.S.C. § 1915A, the

district court dismissed Morgan’s complaint with prejudice

for failure to state a claim upon which relief can be granted.

We start and end our analysis with two threshold issues: sub-

ject-matter jurisdiction and sovereign immunity. Morgan has

not adequately alleged standing to pursue his claim for in-

junctive relief. And federal sovereign immunity bars his claim

for monetary damages. We thus affirm but modify the judg-

ment to reflect a jurisdictional dismissal.

I. Background

Morgan identifies as a Messianic Jew. While incarcerated

at FCI Thomson, he applied for a kosher diet, citing his reli-

gion, and the chaplain approved his application.

After Morgan purchased a turkey log from the commis-

sary in May 2021, however, the chaplain suspended Morgan’s

approval for the prison’s kosher diet program for thirty days.

In a BOP form titled, “Notification of Inmate Religious Diet

Violation,” signed by the chaplain on June 1, 2021, the chap-

lain informed Morgan that because of “Unauthorized Com-

missary - Turkey Log,” the chaplain had recommended a sus-

pension starting June 3, 2021. The form further provided that

if Morgan believed “this report is in error, [he] must submit a

written request to the Chaplain for an interview within 2

No. 22-2731 3

working days of receipt of this notice.” The form also con-

tained a standard instruction that if Morgan was unsatisfied

with the decision, he could appeal through the administrative

remedy process.

Morgan appealed his suspension through the administra-

tive remedy process, faced rejection at each level of review,

then filed a complaint in federal court against the BOP and

Warden Ciolli. In his initial complaint, Morgan alleged that he

had fasted for the entire thirty days of his suspension, theo-

rized that national and institutional BOP policies “that govern

the removal of inmates from religious diets” substantially

burden inmates’ religious exercise in violation of RFRA, and

asked the district court to “[r]escind all BOP policies that al-

low them to remove me from the kosher diet.” Pursuant to 28

U.S.C. § 1915A, the court sua sponte dismissed Morgan’s com-

plaint for failure to state a claim, finding insufficient factual

allegations to plausibly show that the BOP’s dietary policies

substantially burdened Morgan’s religious exercise.

In an amended complaint, Morgan clarified that his sus-

pension was involuntary, and he attached the religious-diet-

violation notification form and his administrative grievances

as supporting documentation. He also added a request for

monetary relief, as an alternative to injunctive relief.

The district court again dismissed Morgan’s complaint for

failure to state a claim. The court reasoned that Morgan had

failed to state a claim under RFRA because he chose to pur-

chase the turkey log and fast for the length of his resulting

suspension from the kosher diet program. According to the

court, Morgan caused his own suffering. The court noted two

additional problems: the complaint included no allegations

about Ciolli’s conduct, and the BOP is immune from suits for

4 No. 22-2731

damages under RFRA. The court deemed any further amend-

ment futile, so it dismissed the amended complaint with prej-

udice and entered final judgment for the defendants.

As of this appeal, Morgan remains in custody, but the BOP

has transferred him to another facility.

II. Discussion

We must satisfy ourselves that subject-matter jurisdiction

exists before we address the merits of a case. See Jakupovic v.

Curran, 850 F.3d 898, 902 (7th Cir. 2017). We therefore start by

asking whether Morgan has established Article III standing to

sue for past or future injuries. If so, we address another

threshold issue: whether federal sovereign immunity protects

the defendants from Morgan’s claim for monetary damages.

We then address the district court’s rationale for dismissal: the

court’s conclusion that Morgan’s amended complaint failed

to state a claim upon which relief can be granted. We review

this conclusion de novo. See Dinerstein v. Google, LLC, 73 F.4th

502, 511 (7th Cir. 2023).

A.

“Standing doctrine traces its origins to Article III of the

Constitution, which grants federal courts the power to resolve

‘Cases’ and ‘Controversies.’” Id. (quoting U.S. Const. art. III,

§ 2). A case or controversy requires a plaintiff to have stand-

ing, meaning the plaintiff (1) suffered a concrete, particular-

ized, and actual or imminent injury (an “injury in fact”),

(2) that is fairly traceable to the challenged conduct of the de-

fendant, and (3) that is likely to be redressed by a favorable

judicial decision. Spokeo, Inc. v. Robins, 578 U.S. 330, 338 (2016);

Lujan v. Defs. of Wildlife, 504 U.S. 555, 560–61 (1992).

No. 22-2731 5

As the party invoking federal jurisdiction, the plaintiff

bears the burden of establishing these elements “in the same

way as any other matter on which the plaintiff bears the bur-

den of proof….” Lujan, 504 U.S. at 561. At the pleading stage,

“the plaintiff must ‘clearly … allege facts demonstrating’ each

element” of standing for each form of relief he seeks. Spokeo,

578 U.S. at 338 (quoting Warth v. Seldin, 422 U.S. 490, 518

(1975)); see also TransUnion LLC v. Ramirez, 594 U.S. 413, 431

(2021). In deciding whether he has met this burden, we “apply

the same analysis used to review whether a complaint ade-

quately states a claim.” Silha v. ACT, Inc., 807 F.3d 169, 173 (7th

Cir. 2015). That is, we accept all factual allegations in the com-

plaint as true and draw all reasonable inferences in the plain-

tiff’s favor. Id. (citing Warth, 422 U.S. at 501).

The standing issue in this case concerns Morgan’s request

for broad prospective injunctive relief: a court-ordered

change in the BOP’s dietary policies. Morgan’s June 2021 sus-

pension from the kosher diet program supports his standing

to sue for damages, but “a past injury alone is insufficient to

establish standing for purposes of prospective injunctive re-

lief.” Simic v. City of Chicago, 851 F.3d 734, 738 (7th Cir. 2017);

see also City of Los Angeles v. Lyons, 461 U.S. 95, 105, 111 (1983);

O'Shea v. Littleton, 414 U.S. 488, 495–96 (1974). A plaintiff must

adduce some other evidence that he faces a “real and imme-

diate” threat of future injury from the challenged conduct as

opposed to a merely “conjectural or hypothetical” threat. Ly-

ons, 461 U.S. at 102 (internal quotation marks omitted).

Morgan’s threat of future injury from the BOP’s dietary

policies depends upon him once again purchasing a turkey

log or other “unauthorized commissary” and the chaplain at

the prison where he is now incarcerated once again removing

6 No. 22-2731

him from the kosher diet list because of this purchase. In his

amended complaint, Morgan says nothing about whether he

has or intends to purchase another turkey log. In his brief on

appeal, however, Morgan adds that he considers turkey ko-

sher and intends to continue purchasing items from the com-

missary that are consistent with his religious diet.

The liberal amendment rule of 28 U.S.C. § 1653 permits lit-

igants to amend “[d]efective allegations of jurisdiction … in

the trial or appellate courts.” Cases in which this rule avails

litigants on appeal usually involve defective allegations of di-

versity or jurisdictional amount. See, e.g., Heinen v. Northrop

Grumman Corp., 671 F.3d 669, 670 (7th Cir. 2012) (adding alle-

gations of domicile); Smoot v. Mazda Motors of Am., Inc., 469

F.3d 675, 677 (7th Cir. 2006) (correcting allegations of the

amount in controversy). Standing is jurisdictional, so this rule

also covers defective allegations of standing. See Yan v. ReWalk

Robotics Ltd., 973 F.3d 22, 36 (1st Cir. 2020); Williams v. Lew, 819

F.3d 466, 471 (D.C. Cir. 2016).

Morgan has not moved under § 1653 to amend his com-

plaint to add the allegations about his intended commissary

purchases. But even if he had, we would deny the motion as

futile. Taking Morgan’s allegations as true and drawing all

reasonable inferences in his favor, his prospects of future in-

jury are too speculative to support standing. First, one past

turkey-log purchase does not establish that Morgan will likely

purchase “unauthorized commissary” in the future. And

while Morgan has alleged (in his brief on appeal) that he in-

tends to continue purchasing items from the commissary that

are consistent with his definition of kosher, he has not alleged

that the commissary at his new facility sells turkey logs or that

he intends to purchase more turkey logs.

No. 22-2731 7

Second, applicable regulations authorize but do not re-

quire an institutional chaplain to withdraw an inmate’s ap-

proval for a religious diet “if the inmate is documented as be-

ing in violation of the terms of the religious diet program to

which the inmate has agreed in writing.” 28 C.F.R. § 548.20(b).

FCI Thomson’s chaplain suspended Morgan’s approval for a

kosher diet after receiving notice that Morgan committed one

religious-diet-program violation in the form of a turkey-log

purchase, but the BOP has since transferred Morgan to a new

BOP facility. The record provides no reason to believe that the

chaplain at his new facility would be so quick to issue a sus-

pension, especially if Morgan explained his definition of ko-

sher to the chaplain.

These circumstances put Morgan in the same position as

other plaintiffs whose allegations have failed to establish an

injury in fact. See Swanigan v. City of Chicago, 881 F.3d 577, 583

(7th Cir. 2018) (plaintiff’s likelihood of being pulled over, ar-

rested, and again subjected to a long detention was “layered

with hypothetical and nowhere near certain”); Sierakowski v.

Ryan, 223 F.3d 440, 444–45 (7th Cir. 2000) (allegations that the

plaintiff was tested for HIV without his consent in the past left

the court “with bare speculation about what testing [his] doc-

tors will later decide to conduct,” where the challenged stat-

ute left unconsented testing decisions “in the hands of indi-

vidual physicians, to be made on a case-by-case basis”). With-

out a showing of “a sufficient likelihood that he will again be

wronged in a similar way, [Morgan] is no more entitled to an

injunction than any other citizen,” and his claim for an order

requiring the BOP to change its policies does not present an

Article III case or controversy. Lyons, 461 U.S. at 111.

8 No. 22-2731

B.

Morgan also seeks damages from the BOP and Warden Ci-

olli for a RFRA violation. On this claim, he has alleged suffi-

cient facts to establish standing. But he runs immediately into

another threshold problem: federal sovereign immunity bars

suits against the United States, including suits against federal

agencies or federal officials in their official capacities, unless

Congress has waived this immunity. See United States v.

Testan, 424 U.S. 392, 399 (1976).

The Supreme Court has described federal sovereign im-

munity as jurisdictional. See id. (“It long has been established,

of course, that the United States, as sovereign, ‘is immune

from suit save as it consents to be sued . . . and the terms of its

consent to be sued in any court define that court’s jurisdiction

to entertain the suit.’” (quoting United States v. Sherwood, 312

U.S. 584, 586 (1941)); United States v. Mitchell, 463 U.S. 206, 212

(1983) (“It is axiomatic that the United States may not be sued

without its consent and that the existence of consent is a pre-

requisite for jurisdiction.”). “[T]he word ‘jurisdictional’ is

generally reserved for prescriptions delineating the classes of

cases a court may entertain (subject-matter jurisdiction) and

the persons over whom the court may exercise adjudicatory

authority (personal jurisdiction).” Fort Bend Cnty. v. Davis, 587

U.S. 541, 548 (2019). While courts use the word in other ways,

the Supreme Court has undertaken to “ward off” this practice

in recent years. Id. (quoting Sebelius v. Auburn Reg’l Med. Ctr.,

568 U.S. 145, 153 (2013)).

Applicable caselaw leaves some ambiguity about the cor-

rect label for sovereign immunity. We have held that “sover-

eign immunity does not diminish a court’s subject-matter ju-

risdiction,” relying on proof by contraposition: Governments

No. 22-2731 9

can waive the benefit of sovereign immunity, but limits on

subject-matter jurisdiction cannot be waived. Blagojevich v.

Gates, 519 F.3d 370, 371 (7th Cir. 2008). Sovereign immunity

remains “jurisdictional,” however, in the sense that a dismis-

sal based on sovereign immunity does not implicate the mer-

its of a case. See McHugh v. Illinois Dep't of Transp., 55 F.4th

529, 533–34, 534 n.2 (7th Cir. 2022); Meyers v. Oneida Tribe of

Indians of Wisconsin, 836 F.3d 818, 822 (7th Cir. 2016). Perhaps

sovereign immunity is a doctrine of personal jurisdiction. See

Turkiye Halk Bankasi A.S. v. United States, 598 U.S. 264, 282

(2023) (Gorsuch, J., concurring in part) (stating that “ques-

tions of sovereign immunity usually go to a court’s personal

jurisdiction over a particular defendant”); see also Franchise

Tax Bd. of California v. Hyatt, 587 U.S. 230, 238–39 (2019) (ex-

plaining that sovereign immunity derives from the “common-

law rule … that ‘no suit or action can be brought against the

king, even in civil matters, because no court can have jurisdic-

tion over him’” (quoting 1 W. Blackstone, Commentaries on

the Laws of England 235 (1765))).

Regardless of the correct label, however, the importance of

sovereign immunity for this case is settled: Except as Con-

gress has consented, Morgan cannot obtain damages from the

BOP—or Warden Ciolli in his official capacity—through this

suit, and a court cannot adjudicate the merits of Morgan’s

claim for monetary damages. Without resolving the charac-

terization ambiguity, we therefore turn to consent.

RFRA provides that “[a] person whose religious exercise

has been burdened … may assert that violation as a claim or

defense in a judicial proceeding and obtain appropriate relief

against a government.” 42 U.S.C. § 2000bb-1(c). The statute

defines “government” to include a federal agency such as the

10 No. 22-2731

BOP. § 2000bb-2(1). Morgan argues that RFRA’s reference to

“appropriate relief” waives the federal government’s sover-

eign immunity against damages suits.

We have yet to interpret the phrase “appropriate relief” in

RFRA as it relates to waiver, but every other circuit to address

this question has held that the phrase is too ambiguous to

waive federal sovereign immunity. See Lancaster v. Sec’y of

Navy, 109 F.4th 283, 294 (4th Cir. 2024); Hale v. Fed. Bureau of

Prisons, 759 F. App’x 741, 744 n.4 (10th Cir. 2019) (per curium);

Davila v. Gladden, 777 F.3d 1198, 1209–10 (11th Cir. 2015); Okle-

vueha Native Am. Church of Haw., Inc. v. Holder, 676 F.3d 829,

841 (9th Cir. 2012); Webman v. Fed. Bureau of Prisons, 441 F.3d

1022, 1026 (D.C. Cir. 2006). Likewise, in Sossamon v. Texas, 563

U.S. 277 (2011), the Supreme Court held that the phrase “ap-

propriate relief” in the Religious Land Use and Institutional-

ized Persons Act, 42 U.S.C. § 2000cc et seq., which provides

state prisoners the same religious protection afforded federal

prisoners under RFRA, does not waive state sovereign im-

munity against damages suits, id. at 280–81, 285–88.

Notably, our sister circuits, except for the Fourth Circuit,

decided this question before the Supreme Court’s decision in

Tanzin v. Tanvir, 592 U.S. 43 (2020). In Tanzin, the Court held

that RFRA permits damages claims against federal officials in

their individual capacities. Id. at 51. But federal officials sued

in their individual capacities are not entitled to sovereign im-

munity. Larson v. Domestic & Foreign Com. Corp., 337 U.S. 682,

689 (1949). And this difference was central to the Court’s rea-

soning in Tanzin, as it distinguished Sossamon by noting “[t]he

obvious difference” that individual-capacity claims do not

implicate sovereign immunity. 592 U.S. at 52.

No. 22-2731 11

Simply put, different interpretive principles apply when

sovereign immunity is involved. Immunity from private suits,

though waivable, “has long been considered ‘central to sover-

eign dignity,’” Sossamon, 563 U.S. at 283 (quoting Alden v.

Maine, 527 U.S. 706, 715 (1999)), and “[s]overeign immunity

principles enforce an important constitutional limitation on

the power of the federal courts,” id. at 284. See also United

States v. Lee, 106 U.S. 196, 205–07 (1882) (tracing the origins of

sovereign immunity to before the time of Edward the First).

A waiver of federal or state sovereign immunity thus must be

“unequivocally expressed” in the text of the relevant statute.

See, e.g., F.A.A. v. Cooper, 566 U.S. 284, 290 (2012); Sossamon,

563 U.S. at 284. Applying this rule, we join our sister circuits

in holding that the phrase “appropriate relief” in RFRA is too

ambiguous to waive federal sovereign immunity.

Because RFRA does not authorize damages suits against

the United States, Morgan’s ability to obtain damages de-

pends on whether Morgan sued Warden Ciolli in his individ-

ual capacity. The underlying complaint only mentions Ciolli

in the caption, which lists “Warden Ciolli” as a defendant. In

his notice of appeal, Morgan added that Ciolli is “the officer

[with] authority over the” prison. Given these allegations, we

construe Morgan’s damages claim against Ciolli as an official-

capacity claim barred by sovereign immunity.

Even if Morgan sued Ciolli in his individual capacity, we

agree with the district court that the claim would fail at the

pleading stage for lack of allegations establishing Ciolli’s per-

sonal involvement in Morgan’s kosher-diet suspension. Mor-

gan has not argued that a vicarious liability theory is viable

under RFRA, and we are only aware of precedent to the con-

trary. See Patel v. Bureau of Prisons, 125 F. Supp. 3d 44, 55

12 No. 22-2731

(D.D.C. 2015) (concluding that “pure vicarious liability—that

is, liability of supervisors based solely on the acts of their sub-

ordinates—is not sufficient to state a claim under RFRA”). Ra-

ther, implicitly conceding the defendants’ argument that lia-

bility under RFRA requires personal involvement and the

complaint’s allegations fail to meet the relevant standard,

Morgan requests a remand to the district court with instruc-

tions to allow Morgan to file an amended complaint clarifying

Ciolli’s involvement in the suspension.

We recognize that the district court sua sponte raised sov-

ereign immunity and Morgan’s failure to include allegations

about Ciolli’s conduct in its second dismissal order. The court

entered this dismissal with prejudice, so Morgan lacked an

opportunity to cure these defects. “Sua sponte dismissals with-

out prior notice or an opportunity to be heard on the issues

underlying the dismissal … generally may be considered haz-

ardous….” Luevano v. Wal-Mart Stores, Inc., 722 F.3d 1014, 1022

(7th Cir. 2013) (quoting Eades v. Thompson, 823 F.2d 1055,

1061–62 (7th Cir. 1987)). Morgan, however, has not explained

on appeal what allegations he would add about Ciolli’s con-

duct if given the opportunity. And sovereign immunity

means amendment would be futile unless Morgan can make

out an individual-capacity claim against Ciolli. We therefore

see no basis to permit Morgan to amend his complaint.

* * *

The district court lacked subject-matter jurisdiction over

Morgan’s claim for prospective injunctive relief, and federal

sovereign immunity bars Morgan’s claim for monetary dam-

ages, so the court properly dismissed the complaint. The dis-

missal should have been without prejudice, however, because

“a dismissal with prejudice is a merits disposition,” Flynn v.

No. 22-2731 13

FCA US LLC, 39 F.4th 946, 954 (7th Cir. 2022), and a court can-

not enter judgment on the merits when it lacks subject-matter

jurisdiction or sovereign immunity applies, id.; McHugh, 55

F.4th at 534 n.2; Meyers, 836 F.3d at 822. We thus modify the

judgment of the district court to reflect a jurisdictional dismis-

sal. As modified, the judgment is

AFFIRMED.