Allen v. Polly et al

Filing 16

ORDER re 15 Referral Notice. Plaintiff's forma pauperis status is revoked. Signed by Judge Kent J. Dawson on 4/28/11. (Copies have been distributed pursuant to the NEF - MMM)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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RONALD LEE ALLEN,

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Plaintiff - Appellant,
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vs.
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BONNY POLLY, Chaplin; et al.
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Defendants - Appellees.
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2:10-cv-02134-KJD-PAL
ORDER

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This matter is before the Court on referral from the United States Court of Appeals for the
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Ninth Circuit for the limited purpose of determining whether in forma pauperis status should
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continue for this appeal or whether the appeal is frivolous or taken in bad faith.
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This case initially came to the Court on Plaintiff’s Civil Rights Complaint pursuant to 42
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U.S.C. § 1983. Plaintiff alleges that he is being denied “a diet consistent with and which allows
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inmate to maintain religous (sic) scruples”. He names Bonny Polly, the jail chaplin, the sheriff and
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officers of the Clark County Detention Center. Defendant has since been transferred to High Desert
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Prison.
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Plaintiff’s factual recitation in support of his First and Fourteenth Amendment claims alleges
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that he is of the Mormon faith and was being offered coffee and tea with his meals, while members

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of the Jewish and Muslim faiths were being offered fruit juices with their meals. He asserts that he

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lost weight due to skipping meals where coffee and tea were served with the meals. He

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acknowledges being offered water as a substitute for coffee and tea. He states that he has spoken

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with a representative of his faith who has offered to pay for the extra cost of juice if costs are a

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consideration. It is unclear whether the offer is to pay for juices for all inmates in the prison system

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or for Plaintiff only.

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Plaintiff does not allege that he is being forced to drink coffee or tea. He does not allege that

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his faith requires him to drink juices or that it prohibits him from drinking water. He does not allege

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that the mere presence of coffee or tea on his tray is deemed by his faith to contaminate the entire

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meal.

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Plaintiff is, at most, asserting a preference, not a religious belief or practice. He has

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alternatives including consumption of water, which is free, or even obtaining juices from the prison

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commissary. For those reasons, the case was dismissed (#9) for failure to state a claim upon which

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relief may be granted.

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Accordingly, Plaintiff should not be permitted to proceed in forma pauperis where, as here,
the appeal is frivolous and not taken in good faith. 28 U.S.C. §1915(a)(3).

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Accordingly, Plaintiff’s forma pauperis status is revoked.

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DATED this 28th day of April 2011.

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_____________________________
Kent J. Dawson
United States District Judge

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