Grossman v. United States

Background

Yitz Grossman, who was proceeding without a lawyer when the opinion was issued, alleged that Officer Ahamad Rezak required him to provide a urine sample and take a breathalyzer test during Sukkot, a Jewish holiday, despite Grossman’s religious objections. Grossman alleged that Rezak threatened to send him to solitary confinement if he refused. Grossman asserted claims under Bivens, a judge-made damages remedy for certain constitutional violations by federal officers; 42 U.S.C. § 1985(3), which addresses conspiracies to deprive people of equal protection; the Religious Freedom Restoration Act (RFRA); and the Federal Tort Claims Act (FTCA). He also asserted claims against the United States and sought to add Nicole Gulliver as a defendant for alleged retaliation.

The supervisory defendants were Warden B. Von Blackensee, Captain Matt Whinery, Executive Assistant/Camp Administrator Chris Entzel, Chaplain Avrohom Richter, and Associate Warden J.L. Maldonado. The supervisory defendants and Rezak filed motions to dismiss under Federal Rule of Civil Procedure 12(b)(6), which tests whether a complaint adequately states a legally plausible claim. The United States sought dismissal for lack of subject-matter jurisdiction under Rule 12(b)(1), which concerns the court’s power to hear a claim. Grossman did not file opposition briefs to the motions.

Bivens claims

The court dismissed Grossman’s Bivens claims against the supervisory defendants without prejudice because the Second Amended Complaint did not adequately allege their direct, personal involvement. The court relied on its earlier ruling and concluded that allegations based only on supervision or responsibility for Rezak were insufficient.

The court also dismissed Grossman’s Bivens claims against Rezak without prejudice. It ruled that Grossman’s First Amendment free-exercise, Fifth Amendment due-process and equal-protection, and Eighth Amendment claims arose in contexts different from the three situations in which the Supreme Court has recognized a Bivens remedy. The court further found that special factors, including congressional authority over prison administration and the availability of other potential remedies, counseled against creating a new Bivens damages remedy.

Section 1985(3) conspiracy claim

The court dismissed Grossman’s conspiracy claims against all defendants with prejudice. It found that the Second Amended Complaint offered only conclusory allegations and did not identify particular acts showing that the defendants agreed to violate Grossman’s rights. The court also held that the defendants, as employees of the same facility acting within the scope of their employment, were legally incapable of conspiring with one another under the intra-corporate conspiracy doctrine.

RFRA claim

The court dismissed Grossman’s RFRA claim against the supervisory defendants without prejudice because the complaint did not adequately allege their direct involvement in burdening his religious exercise. The court noted that the complaint described policies and other measures by which supervisory officials supported Jewish religious observance.

The court denied Rezak’s motion to dismiss the RFRA claim against him. Taking Grossman’s allegations as true at this stage, the court found that he plausibly alleged that Rezak substantially burdened his religious exercise by requiring the testing during Sukkot after being informed of Grossman’s religious obligations. The court also declined to resolve Rezak’s qualified-immunity defense at the motion-to-dismiss stage because its resolution depended on factual questions. Grossman’s RFRA claim against Rezak therefore survived.

Claims against the United States

The court dismissed with prejudice all claims against the United States. It ruled that the United States had not waived sovereign immunity for Grossman’s constitutional-retaliation claims. It also ruled that Grossman had not properly exhausted the administrative process required before bringing his FTCA claims. The administrative materials did not expressly raise the FTCA theories asserted in the Second Amended Complaint, identify the required injuries, or state the amount of damages sought. The court additionally found no indication that Grossman filed an action within six months after the agency denied his administrative tort claim.

Request to add Nicole Gulliver and final order

The court denied Grossman’s request to add Nicole Gulliver because the alleged retaliation claims against her were distinct from the claims in this case. The court stated that Grossman would need to bring those allegations in a separate action if he wished to pursue them.

Judge Nelson S. Roman granted the supervisory defendants’ motion to dismiss in its entirety and granted in part and denied in part Rezak’s motion. The court granted Grossman leave to file a Third Amended Complaint by March 21, 2025. If he did not file one, Rezak was directed to respond to the Second Amended Complaint, and the claims dismissed without prejudice by this order would be deemed dismissed with prejudice.