Albaiaty v. Pocwierz

Filing 7

MEMORANDUM AND ORDER - Plaintiff shall have until September 13, 2012, to amend his complaint to clearly state a claim upon which relief may be granted against defendant, in accordance with this Memorandum and Order. If plaintiff fails to file an amended complaint, his complaint will be dismissed without further notice for failure to state a claim upon which relief may be granted. In the event that plaintiff files an amended complaint, he must restate the allegations of the current compla int and any new allegations. Plaintiff's request for the appointment of counsel (Filing No. 1 at CM/ECF p. 6) is denied without prejudice to reassertion. (Pro Se Case Management Deadline set for 9/13/2012: Check for amended complaint and dismiss if none filed.) Ordered by Senior Judge Lyle E. Strom. (Copy mailed to pro se party) (TEL)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
EBTIHAL ALBAIATY,

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Plaintiff,
v.
TED POCWIERZ, Lt., in his
personal and official
capacity,
Defendant.

4:12CV3120

MEMORANDUM AND ORDER

Plaintiff Ebtihal Albaiaty filed his complaint in this
matter on June 12, 2012 (Filing No. 1).

Plaintiff was given

leave to proceed in forma pauperis (Filing No. 6).

The Court now

conducts an initial review of plaintiff’s complaint to determine
whether summary dismissal is appropriate under 28 U.S.C. §§
1915(e)(2) and 1915A.
I.

SUMMARY OF COMPLAINT
Plaintiff filed his complaint against one defendant,

Ted Pocwierz (Filing No. 1).

He has sued defendant in his

“personal and official” capacities.

(Id. at CM/ECF p. 1.)

Defendant is a lieutenant at the detention facility where
plaintiff is incarcerated.

(Id. at CM/ECF p. 2.)

Plaintiff alleges that he has an Arabic-language Quran
in his possession at the detention facility, which he can read
“but not well.”

His family brought him an English-language

Quran, but defendant would not allow him to possess an additional

copy of the Quran or exchange it for the one in his possession.
(Id. at CM/ECF p. 5.)

Plaintiff alleges that defendant allows

him to have several copies of the Christian Bible, but only
allows him to have one copy of the Quran.

(Id.)

Defendant’s

conduct makes plaintiff feel “put down and denegrated [sic].”
(Id.)

As relief, plaintiff asks that the Court direct the jail

to allow inmates to have the same access to the Quran as they do
the Christian Bible, and also to stop punishing him and other
Muslims for practicing their faith.
II.

(Id. at CM/ECF p. 6.)

APPLICABLE LEGAL STANDARDS ON INITIAL REVIEW
The Court is required to review in forma pauperis

complaints to determine whether summary dismissal is appropriate.
See 28 U.S.C. § 1915(e)(2).

The Court must dismiss a complaint

or any portion thereof that states a frivolous or malicious
claim, that fails to state a claim upon which relief may be
granted, or that seeks monetary relief from a defendant who is
immune from such relief.

28 U.S.C. § 1915(e)(2)(B).

Pro se plaintiffs must set forth enough factual
allegations to “nudge[] their claims across the line from
conceivable to plausible,” or “their complaint must be dismissed”
for failing to state a claim upon which relief can be granted.
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 70 (2007); see also
Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009) (“A claim has facial
plausibility when the plaintiff pleads factual content that
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allows the court to draw the reasonable inference that the
defendant is liable for the misconduct alleged.”).

Regardless of

whether a plaintiff is represented or is appearing pro se, the
plaintiff’s complaint must allege specific facts sufficient to
state a claim.
Cir. 1985).

See Martin v. Sargent, 780 F.2d 1334, 1337 (8th

However, a pro se plaintiff’s allegations must be

construed liberally.

Burke v. North Dakota Dep’t of Corr. &

Rehab., 294 F.3d 1043, 1043-44 (8th Cir. 2002) (citations
omitted).
Liberally construed, plaintiff here alleges federal
constitutional claims.

To state a claim under 42 U.S.C. § 1983,

a plaintiff must allege a violation of rights protected by the
United States Constitution or created by federal statute and also
must show that the alleged deprivation was caused by conduct of a
person acting under color of state law.

West v. Atkins, 487 U.S.

42, 48 (1988); Buckley v. Barlow, 997 F.2d 494, 495 (8th Cir.
1993).
III. DISCUSSION OF CLAIMS
A.

Plaintiff’s First Amendment Claim
Liberally construed, plaintiff alleges that defendant

violated his First Amendment right to religious freedom.

The

First Amendment, made applicable to the states through the
Fourteenth Amendment, prohibits Congress from making any “law
respecting an establishment of religion, or prohibiting the free
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exercise thereof.”

U.S. CONST. amend. I.

A prisoner retains his

First Amendment right to the free exercise of his religion so
long as those rights “are not inconsistent with his status as a
prisoner or with the legitimate penological objectives of the
corrections system.”
(1974).

Pell v. Procunier, 417 U.S. 817, 822

It is well-established that only those beliefs that are

(1) sincerely held, and (2) religious in nature are entitled to
constitutional protection.

Wisconsin v. Yoder, 406 U.S. 205,

215-19 (1972).
To state a First Amendment claim, plaintiff must allege
facts tending to show that prison officials have substantially
burdened the free exercise of his religion.

Patel v. U.S. Bureau

of Prisons, 515 F.3d 807, 813 (8th Cir. 2008).

Substantially

burdening one’s free exercise of religion means that the
regulation significantly inhibits or constrains conduct or
expression that manifests some central tenet of a person’s
individual religious beliefs, meaningfully curtails the person’s
ability to express adherence to his or her faith, or denies a
person reasonable opportunities to engage in those activities
that are fundamental to a person’s religion.

Murphy v. Mo. Dep’t

of Corr., 372 F.3d 979, 988 (8th Cir. 2004).
Here, plaintiff’s allegations are not sufficient to
state a First Amendment claim.

Plaintiff does not indicate how

possessing only one Arabic-language Quran prevents him from

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practicing his faith.

Indeed, plaintiff states that he “can read

Arabic but not well.”

(Filing No 1 at CM/ECF p. 4 (emphasis

added).)

In addition, plaintiff does not allege that defendant’s

actions have restricted him from practicing his faith.
Specifically, he does not allege that defendant’s refusal to
provide him with an additional or replacement copy of the Quran
burdens his free exercise of religion.

In short, plaintiff has

failed to state a First Amendment claim upon which relief may be
granted.
On the Court’s own motion, plaintiff will have 30 days
in which to amend his complaint to sufficiently allege a First
Amendment claim against defendant.

If plaintiff fails to file an

amended complaint in accordance with this Memorandum and Order,
this matter will be dismissed without prejudice for failure to
state a claim upon which relief may be granted.
B.

Plaintiff’s Official-Capacity Claim
A suit against a public employee in his official

capacity is merely a suit against the public employer.

Johnson

v. Outboard Marine Corp., 172 F.3d 531, 535 (8th Cir. 1999).
Thus, the Court construes a suit against defendant in his
official capacity as a suit against Platte County, Nebraska.

As

a municipal defendant, Platte County, Nebraska, may only be
liable under section 1983 if its official “policy” or “custom”
caused a violation of the plaintiff’s constitutional rights.

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Doe By & Through Doe v. Washington County, 150 F.3d 920, 922 (8th
Cir. 1998) (citing Monell v. Dep’t of Soc. Servs., 436 U.S. 658,
694 (1978)).

An “official policy” involves a deliberate choice

to follow a course of action made from among various alternatives
by an official who has the final authority to establish
governmental policy.

Jane Doe A By & Through Jane Doe B v.

Special School Dist. of St. Louis County, 901 F.2d 642, 645 (8th
Cir.1990) (citing Pembaur v. City of Cincinnati, 475 U.S. 469,
483 (1986)).

To establish the existence of a governmental

custom, a plaintiff must prove:
1)

The existence of a continuing,
widespread, persistent pattern
of unconstitutional misconduct
by the governmental entity’s
employees;

2)

Deliberate indifference to or
tacit authorization of such
conduct by the governmental
entity’s policymaking
officials after notice to the
officials of that misconduct;
and

3)

That plaintiff was injured by
acts pursuant to the
governmental entity’s custom,
i.e., that the custom was the
moving force behind the
constitutional violation.

Jane Doe, 901 F.2d at 646.
Here, plaintiff does not allege that there is a
continuing, widespread, persistent pattern of unconstitutional
misconduct by Platte County, Nebraska, employees, or that the
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county’s policymaking officials were deliberately indifferent to
or tacitly authorized any unconstitutional conduct.

In addition,

plaintiff does not allege that an unconstitutional custom was the
moving force behind his injuries.

Accordingly, plaintiff has

failed to allege sufficient facts to “nudge” his claims against
Platte County, Nebraska, across the line from conceivable to
plausible under the Jane Doe standard.
On its own motion, the Court will permit plaintiff 30
days in which to amend his complaint to sufficiently allege a
claim against the Platte County, Nebraska, in accordance with the
Jane Doe standard.

Any amended complaint must restate the

allegations of plaintiff’s prior complaint and any new
allegations.

Failure to consolidate all claims into one document

will result in the abandonment of claims.

If plaintiff fails to

file an amended complaint in accordance with this Memorandum and
Order, this matter will be dismissed without prejudice for
failure to state a claim upon which relief may be granted.
IV.

Plaintiff’s Request for Counsel
Plaintiff seeks the appointment of counsel (Filing No.1

at CM/ECF p. 6).

However, the Court cannot routinely appoint

counsel in civil cases.

In Davis v. Scott, 94 F.3d 444, 447 (8th

Cir. 1996), the Eighth Circuit Court of Appeals explained that
“[i]ndigent civil litigants do not have a constitutional or
statutory right to appointed counsel. . . . The trial court has

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broad discretion to decide whether both the plaintiff and the
court will benefit from the appointment of counsel . . . .”
(quotation and citation omitted).
here.

Id.

No such benefit is apparent

Thus, plaintiff’s request for the appointment of counsel

will be denied without prejudice to reassertion.
IT IS ORDERED:
1.

Plaintiff shall have until September 13, 2012, to

amend his complaint to clearly state a claim upon which relief
may be granted against defendant, in accordance with this
Memorandum and Order.

If plaintiff fails to file an amended

complaint, his complaint will be dismissed without further notice
for failure to state a claim upon which relief may be granted.
2.

In the event that plaintiff files an amended

complaint, he must restate the allegations of the current
complaint and any new allegations.
3.

The clerk’s office is directed to set a pro se

case management deadline in this case using the following text:
September 13, 2012:

Check for amended complaint, and dismiss if

none filed.
4.

Plaintiff’s request for the appointment of counsel

(Filing No. 1 at CM/ECF p. 6) is denied without prejudice to
reassertion.

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5.

Plaintiff must keep the Court informed of his

current address at all times while this case is pending.

Failure

to do so may result in dismissal without further notice.
DATED this 13th day of August, 2012.
BY THE COURT:
/s/ Lyle E. Strom
____________________________
LYLE E. STROM, Senior Judge
United States District Court

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