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 Institution (FCI) Thomson in May 2021, in an apparent violation
of the prison’s kosher diet program. As a result of his purchase, the institutional chaplain suspended Morgan’s approval for a kosher diet for thirty days. Morgan says that the
suspension forced him to choose between starving and violating 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 transferred 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: subject-matter jurisdiction and sovereign immunity. Morgan has
not adequately alleged standing to pursue his claim for injunctive relief. And federal sovereign immunity bars his claim
for monetary damages. We thus affirm but modify the judgment 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 religion, and the chaplain approved his application.
    After Morgan purchased a turkey log from the commissary 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 chaplain informed Morgan that because of “Unauthorized Commissary - Turkey Log,” the chaplain had recommended a suspension 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 contained 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 administrative 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, theorized 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 allow them to remove me from the kosher diet.” Pursuant to 28
U.S.C. § 1915A, the court sua sponte dismissed Morgan’s complaint 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 suspension was involuntary, and he attached the religious-dietviolation 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 purchase 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 amendment futile, so it dismissed the amended complaint with prejudice 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, 

 (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, 

, 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.’” 

 (quoting U.S. Const. art. III,
§ 2). A case or controversy requires a plaintiff to have standing, meaning the plaintiff (1) suffered a concrete, particularized, and actual or imminent injury (an “injury in fact”),
(2) that is fairly traceable to the challenged conduct of the defendant, and (3) that is likely to be redressed by a favorable
judicial decision. Spokeo, Inc. v. Robins, 

, 338 (2016);
Lujan v. Defs. of Wildlife, 

, 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 burden of proof….” Lujan, 

. 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, 

(1975)); see also TransUnion LLC v. Ramirez, 

, 431
(2021). In deciding whether he has met this burden, we “apply
the same analysis used to review whether a complaint adequately states a claim.” Silha v. ACT, Inc., 

 (7th
Cir. 2015). That is, we accept all factual allegations in the complaint as true and draw all reasonable inferences in the plaintiff’s favor. 

 (citing Warth, 

).
    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 suspension 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 relief.” Simic v. City of Chicago, 

 (7th Cir. 2017);
see also City of Los Angeles v. Lyons, 

 (1983);
O'Shea v. Littleton, 

, 495–96 (1974). A plaintiff must
adduce some other evidence that he faces a “real and immediate” threat of future injury from the challenged conduct as
opposed to a merely “conjectural or hypothetical” threat. Lyons, 

 (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 kosher and intends to continue purchasing items from the commissary that are consistent with his religious diet.
     The liberal amendment rule of 

 permits litigants 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 diversity or jurisdictional amount. See, e.g., Heinen v. Northrop
Grumman Corp., 

 (7th Cir. 2012) (adding allegations of domicile); Smoot v. Mazda Motors of Am., Inc., 

 (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., 

, 36 (1st Cir. 2020); Williams v. Lew, 

 (D.C. Cir. 2016).
    Morgan has not moved under § 1653 to amend his complaint 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 injury 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 intends 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 require an institutional chaplain to withdraw an inmate’s approval for a religious diet “if the inmate is documented as being in violation of the terms of the religious diet program to
which the inmate has agreed in writing.” 

(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 suspension, especially if Morgan explained his definition of kosher 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, 

(7th Cir. 2018) (plaintiff’s likelihood of being pulled over, arrested, and again subjected to a long detention was “layered
with hypothetical and nowhere near certain”); Sierakowski v.
Ryan, 

, 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] doctors will later decide to conduct,” where the challenged statute left unconsented testing decisions “in the hands of individual physicians, to be made on a case-by-case basis”). Without 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, 

.
8                                                     No. 22-2731

                                B.
    Morgan also seeks damages from the BOP and Warden Ciolli for a RFRA violation. On this claim, he has alleged sufficient 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, 

 (1976).
    The Supreme Court has described federal sovereign immunity as jurisdictional. See 

 (“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, 

 (1941)); United States v. Mitchell, 

(1983) (“It is axiomatic that the United States may not be sued
without its consent and that the existence of consent is a prerequisite 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, 

, 548 (2019). While courts use the word in other ways,
the Supreme Court has undertaken to “ward off” this practice
in recent years. 

 (quoting Sebelius v. Auburn Reg’l Med. Ctr.,

 (2013)).
    Applicable caselaw leaves some ambiguity about the correct label for sovereign immunity. We have held that “sovereign immunity does not diminish a court’s subject-matter jurisdiction,” 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, 

 (7th Cir. 2008). Sovereign immunity
remains “jurisdictional,” however, in the sense that a dismissal based on sovereign immunity does not implicate the merits of a case. See McHugh v. Illinois Dep't of Transp., 

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

 (7th Cir. 2016). Perhaps
sovereign immunity is a doctrine of personal jurisdiction. See
Turkiye Halk Bankasi A.S. v. United States, 

(2023) (Gorsuch, J., concurring in part) (stating that “questions of sovereign immunity usually go to a court’s personal
jurisdiction over a particular defendant”); see also Franchise
Tax Bd. of California v. Hyatt, 

, 238–39 (2019) (explaining that sovereign immunity derives from the “commonlaw rule … that ‘no suit or action can be brought against the
king, even in civil matters, because no court can have jurisdiction 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 Congress 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 characterization 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 sovereign 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, 

, 294 (4th Cir. 2024); Hale v. Fed. Bureau of
Prisons, 

, 744 n.4 (10th Cir. 2019) (per curium);
Davila v. Gladden, 

, 1209–10 (11th Cir. 2015); Oklevueha Native Am. Church of Haw., Inc. v. Holder, 

 (9th Cir. 2012); Webman v. Fed. Bureau of Prisons, 

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

 (2011), the Supreme Court held that the phrase “appropriate relief” in the Religious Land Use and Institutionalized 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 immunity 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, 

 (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 immunity. Larson v. Domestic & Foreign Com. Corp., 

 (1949). And this difference was central to the Court’s reasoning 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 sovereign dignity,’” Sossamon, 

 (quoting Alden v.
Maine, 

 (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, 

, 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, 

 (2012); Sossamon,

. 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 depends on whether Morgan sued Warden Ciolli in his individual 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 officialcapacity 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 personal involvement in Morgan’s kosher-diet suspension. Morgan has not argued that a vicarious liability theory is viable
under RFRA, and we are only aware of precedent to the contrary. See Patel v. Bureau of Prisons, 

, 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 subordinates—is not sufficient to state a claim under RFRA”). Rather, implicitly conceding the defendants’ argument that liability 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 instructions to allow Morgan to file an amended complaint clarifying
Ciolli’s involvement in the suspension.
    We recognize that the district court sua sponte raised sovereign 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 without prior notice or an opportunity to be heard on the issues
underlying the dismissal … generally may be considered hazardous….” Luevano v. Wal-Mart Stores, Inc., 

(7th Cir. 2013) (quoting Eades v. Thompson, 

,
1061–62 (7th Cir. 1987)). Morgan, however, has not explained
on appeal what allegations he would add about Ciolli’s conduct 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 damages, so the court properly dismissed the complaint. The dismissal should have been without prejudice, however, because
“a dismissal with prejudice is a merits disposition,” Flynn v.
No. 22-2731                                                    13

FCA US LLC, 

, 954 (7th Cir. 2022), and a court cannot 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, 

. We thus modify the
judgment of the district court to reflect a jurisdictional dismissal. As modified, the judgment is
                                                       AFFIRMED.