Jordan #376733 v. Martin et al

Filing 7

OPINION ; signed by EDTN Judge R. Allan Edgar (EDTN Judge R. Allan Edgar, cam)

UNITED STATES OF AMERICA U N IT E D STATES DISTRICT COURT FO R THE WESTERN DISTRICT OF MICHIGAN N O R T H E R N DIVISION

MICHAEL D. JORDAN #376733, P la i n ti ff, v. M IC H A E L MARTIN, et al., D e fe n d a n t s . _ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ __ _ _ _/ C a se No. 2:08-cv-187 H on orable R. Allan Edgar

O PIN IO N T h is is a civil rights action brought by a state prisoner pursuant to 42 U.S.C. § 1983. T h e Court has granted Plaintiff leave to proceed in forma pauperis, and Plaintiff has paid the initial p artial filing fee. Under the Prison Litigation Reform Act, PUB. L. NO. 104-134, 110 STAT. 1321 (1 9 9 6), the Court is required to dismiss any prisoner action brought under federal law if the complaint is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief fro m a defendant immune from such relief. 28 U.S.C. §§ 1915(e)(2), 1915A; 42 U.S.C. § 1997e(c). Th e Court must read Plaintiff's pro se complaint indulgently, see Haines v. Kerner, 404 U.S. 519, 520 (19 72 ), and accept Plaintiff's allegations as true, unless they are clearly irrational or wholly incredible. D enton v. Hernandez, 504 U.S. 25, 33 (1992). Plaintiff Michael D. Jordan #376733, an inmate at the Baraga Maximum Correctional Facility (AMF), filed this pro se civil rights action pursuant to 42 U.S.C. § 1983 against Defendants S p ecial Activities Director Michael Martin, Chaplain Keith R. Snyder, Deputy Warden L. Tribley, and Warden G. McQuiggin. Plaintiff alleges in his complaint that he was told he would have to take a test in order to receive a Kosher diet. On April 2, 2008, Plaintiff was informed that he was being denied

a Kosher diet. Plaintiff seeks to receive a Kosher diet while incarcerated in order to "practice his b e l ie f." A complaint fails to state a claim upon which relief can be granted when it is clear that n o relief could be granted under any set of facts that could be proved consistent with the allegations of th e complaint. Jones v. City of Carlisle, 3 F.3d 945, 947 (6th Cir. 1993). To state a claim under 42 U .S .C . § 1983, a plaintiff must allege the violation of a right secured by the federal Constitution or laws an d must show that the deprivation was committed by a person acting under color of state law. West v. Atkins, 487 U.S. 42, 48 (1988); Street v. Corr. Corp. of Am., 102 F.3d 810, 814 (6th Cir. 1996). B e cau se § 1983 is a method for vindicating federal rights, not a source of substantive rights itself, the first step in an action under § 1983 is to identify the specific constitutional right allegedly infringed. Albrigh t v. Oliver, 510 U.S. 266, 271 (1994). As noted above, Plaintiff states that he requires a Kosher diet in order to practice his "b elief." Prisoners do not lose their right to freely exercise their religion by virtue of their incarceration. C ru z v. Beto, 405 U.S. 319, 322, n. 2 (1972). Freedom of religion being a fundamental right, any regu latio n which infringes upon it must generally be justified by a "compelling state interest". See, for exa m p le, Wisconsin v. Yoder, 406 U.S. 205 (1972). However, as a prisoner, Plaintiff's constitutional righ ts are subject to severe restriction. See, for example, Bell v. Wolfish, 441 U.S. 520 (1979) (restrictio n on receipt of reading materials); Hudson v. Palmer, 468 U.S. 517 (1984) (privacy); Wolff v. McDonnell, 418 U.S. 539, 566 (1974) (right to call witnesses); Richardson v. Ramirez, 418 U.S. 24 (1 9 7 4 ) (vote). See, generally, Washington v. Harper, 494 U.S. 210 (1990); Turner v. Safley, 482 U.S. 7 8 (1987); O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987). In this case, Plaintiff fails to specify the nature of his "belief." Plaintiff does not state w h at his religious affiliation is, or even whether the reason he requires a Kosher diet is religious in

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n atu re. Rather, the allegations in Plaintiff's Complaint are broad, conclusory statements which are not su p p o rted by sufficient facts to deserve serious consideration. See, e.g., Nuclear Transport & Storage, Inc. v. United States, 890 F.2d 1348 (6th Cir. 1989), cert. denied, 494 U.S. 1079 (1990); Scheid v. Fa nn y Farmer Candy Shops, Inc., 859 F.2d 434, 436-437 (6th Cir. 1988); Morgan v. Church's Fried C hicken, 829 F.2d 10, 12 (6th Cir. 1987); Chapman v. City of Detroit, 808 F.2d 459, 465 (6th Cir. 1 9 8 6 ); Smith v. Rose, 760 F.2d 102 (6th Cir. 1985); Johnson v. Stark, 717 F.2d 1550 (8th Cir. 1983). H a vin g conducted the review now required by the Prison Litigation Reform Act, the C o u rt concludes that Plaintiff's complaint should be dismissed for failure to state a claim pursuant to 2 8 U.S.C. §§ 1915(e)(2) and 1915A(b), and 42 U.S.C. § 1997e(c). The court must next decide whether an appeal of this action would be in good faith w ith in the meaning of 28 U.S.C. § 1915(a)(3). See McGore v. Wrigglesworth, 114 F.3d 601, 611 (6th C ir. 1997). For the same reasons that the court dismisses this case, the court discerns no good-faith b asis for an appeal. Should the plaintiff appeal this decision, the court will assess the $455 appellate filin g fee pursuant to § 1915(b)(1), see McGore, 114 F.3d at 610-11, unless plaintiff is barred from p ro ceed in g in forma pauperis, e.g., by the "three-strikes" rule of § 1915(g). If he is barred, he will be req u ired to pay the $455 appellate filing fee in one lump sum. A judgment consistent with this Opinion will issue.

D a te d :

10/21/08

/s/ R. Allan Edgar R. Allan Edgar U n ited States District Judge

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