Johnson v. Lewis et al

Filing 18

ORDER denying 6 Motion ; denying 7 Motion to Substitute Party. ; denying 8 Motion for TRO; denying 9 Motion ; denying 12 Motion to Amend/Correct; denying 14 Motion to Appoint Counsel. Signed by District Judge Robert J. Conrad, Jr on 3/12/2014. (Pro se litigant served by US Mail.)(blf)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NORTH CAROLINA
CHARLOTTE DIVISION
3:13-cv-148-RJC
ZANE JOHNSON,

)
)
Plaintiff,
)
)
vs.
)
)
)
GEORGE SOLOMON, Director of
)
Prisons, et al.,
)
)
Defendants.
)
____________________________________ )

ORDER

THIS MATTER comes before the Court on initial review of Plaintiff’s Amended
Complaint, filed under 42 U.S.C. § 1983, (Doc. No. 16); on Plaintiff’s Motion to Submit
Evidence, (Doc. No. 6); Plaintiff’s Motion to Substitute Party, (Doc. No. 7); Plaintiff’s Motion
for Temporary Restraining Order, (Doc. No. 8); Plaintiff’s Motion for Emergency Temporary
Kosher Tray [to] be Ordered for All Kosher Inmates, (Doc. No. 9); Plaintiff’s Motion to Amend
Defendant Title, (Doc. No. 12); and Plaintiff’s Motion to Appoint Counsel, (Doc. No. 14).
I.

BACKGROUND
Pro se Plaintiff Zane Johnson, currently incarcerated at Lanesboro Correctional

Institution (“Lanesboro”), filed a Complaint in this action on March 8, 2013, pursuant to 42
U.S.C. § 1983, and he filed an Amended Complaint on December 19, 2013.1 Although Plaintiff
does not identify in his Amended Complaint the legal claims he purports to bring, the Court

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On December 3, 2013, this Court entered an Order requiring Plaintiff to re-submit the
Complaint because the Complaint in its current form was illegible.
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notes that in his original Complaint he alleged that Defendants are violating his First Amendment
right to the free exercise of his religion and the Religious Land Use and Institutionalized Persons
Act (“RLUIPA”), 42 U.S.C. §§ 2000cc-1 to 2000cc-5, by denying him a proper Kosher diet in
accordance with his religious beliefs as a Hebrew Israelite. In the Amended Complaint, Plaintiff
states this this cause of action arose at Central Prison in Raleigh, North Carolina, and that the
violations are continuing at Lanesboro. In the Amended Complaint, Plaintiff names as
Defendants George Solomon, identified as Director of the North Carolina Division of Prisons;
“Mr. Ruppel and Mrs. Clark,” identified as the Head of Kitchen Staff at Lanesboro; Jackie
Parker, identified as the the Head Dietician for the North Carolina Division of Prisons with an
address at 218 W. Morgan Street in Raleigh, North Carolina; Betty Liles, identified as having an
address in Kernersville, North Carolina; and James Rice, identified as being employed at Central
Prison in Raleigh, North Carolina. Plaintiff appears to be complaining that the meal that he is
being served at Lanesboro does not correctly follow the Kosher guidelines pursuant to his
religious beliefs as a Hebrew Israelite. Specifically, Plaintiff alleges the following in the
Amended Complaint:
My claim is that the Hebrew Israelites are [being fed from a] tray like [regular
inmates] when the tray[s] are supposed to be order[ed] from a Kosher kitchen
[due] to germs and no[t] getting the proper food like the five basic meats turkey,
steak, chicken, baked fish. Now [Raleigh] is feeding right. Lanesboro plus
Maury plus Scotland is feeding from a Kosher veggie menu and it [is] no[t] fair to
lose … weight by being starved and forced of the diet due to the non-meat menu.
I showed the court where Kosher meat vs. allow and temp tray is the kosher real
way to feed Hebrew Israelite d[ue] to the menu from the Hebrew Israelite
community Pub. [Raleigh] Dept. African Hebrew Israelite of Jerusalem P.O. Box
465 Dimona Israel 866000. I would love to honor my religion and the real
forthcoming of the real food. They got people running off [from their] religion
because of a veggie menu made up [by Raleigh] that in violate. Because the
judge rule to serve Kosher but he thought it was going to be true Kosher not made
up.
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(Id. at 4).2 For relief, Plaintiff states that he wants to be paid $1000 a day “for the time I have
suffered and order [Raleigh] to go to the non-air temporary tray so we can get the Kosher meat
tray not hand-made with a bag that [sic] fruit, cheese, bread, juice Real to go with the trays of the
truck.” (Doc. No. 16 at 4).
II.

STANDARD OF REVIEW
Because Plaintiff is proceeding in forma pauperis, the Court must review the Complaint

to determine whether it is subject to dismissal on the grounds that it is “frivolous or malicious
[or] fails to state a claim on which relief may be granted.” 28 U.S.C. § 1915(e)(2). Furthermore,
§ 1915A requires an initial review of a “complaint in a civil action in which a prisoner seeks
redress from a governmental entity or officer or employee of a governmental entity,” and the
court must identify cognizable claims or dismiss the complaint, or any portion of the complaint,
if the complaint is frivolous, malicious, or fails to state a claim upon which relief may be
granted; or seeks monetary relief from a defendant who is immune from such relief.
In its frivolity review, this Court must determine whether the Complaint raises an

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This Court takes judicial notice of the fact that, in a lawsuit filed in the Eastern District of
North Carolina, the plaintiff there, also an alleged Hebrew Israelite, alleged that prison officials
were refusing to provide him with a kosher diet in violation of his right to practice his religion.
In the district court’s order dated July 17, 2012, the Court stated: “As for plaintiff's claims
concerning receiving a kosher diet and gaining recognition of the Hebrew Israelite religion,
defendants seek summary judgment on the ground that the claim is now moot in light of DOP’s
efforts to provide plaintiff a kosher diet and add the Hebrew Israelite religion to DOP's religious
practices manual. (Mem. Supp. Mot. Summ. J. at 9-10.)” Yisrael v. Beasley, No. 5:08-CT3079-H, 2012 WL 2919984, at *6 (E.D.N.C. July 17, 2012). In this action, Plaintiff appears to
be contending that, although Lanesboro is now offering meals that it identifies as Kosher,
Lanesboro is still not serving true Kosher meals. At least one other North Carolina state court
inmate has a brought a similar claim, which is currently pending in the Eastern District of North
Carolina. See Scott v. Keller, No. 5:11-CT-3009-FL, 2013 WL 3490356 (E.D.N.C. July 11,
2013).
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indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such
as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989).
Furthermore, a pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519,
520 (1972). However, the liberal construction requirement will not permit a district court to
ignore a clear failure to allege facts in his Complaint which set forth a claim that is cognizable
under federal law. Weller v. Dep’t of Soc. Servs., 901 F.2d 387 (4th Cir. 1990).
III.

DISCUSSION
A.

Initial Review of Plaintiff’s Amended Complaint

Plaintiff, who identifies himself as a Hebrew Israelite, first claims that Defendants’
failure to provide him a specific diet violates the Free Exercise Clause of the First Amendment,
which provides that “Congress shall make no law . . . prohibiting the free exercise” of religion.
U.S. CONST. amend. I. Specifically, Plaintiff alleges that the diet that he is being fed at the
prison is not a true Kosher diet and he is, therefore, unable to practice his religion. He also
complains that certain meats have been taken out of the diet, causing him to lose weight.
Plaintiff also contends that Defendants have violated the Religious Land Use and
Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. § 2000cc-1 et seq.3

Before 1994, claims that regulations violated a prisoner’s right to freely exercise his or her
religion were evaluated under the “reasonableness” standard set forth in Turner and O’Lone. In
1993, Congress passed the Religious Freedom Restoration Act (“RFRA”), which stated that the
“[g]overnment may substantially burden a person's exercise of religion only if it demonstrates
that application of the burden to the person (1) is in furtherance of a compelling governmental
interest; and (2) is the least restrictive means of furthering that compelling governmental interest.
See 42 U.S.C. § 2000bb-1(b) (1994). The United States Supreme Court subsequently declared
the RFRA unconstitutional in that Congress had exceeded its powers under Section 5 of the
Fourteenth Amendment. See City of Boerne v. Flores, 521 U.S. 507, 536 (1997). In 20013, the
RLUIPA was enacted in response to the Supreme Court’s holding that RFRA was
unconstitutional.
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Prisoners “do not forfeit all constitutional protections by reason of their conviction and
confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545 (1979). They retain the protections
afforded by the First Amendment, “including its directive that no law shall prohibit the free
exercise of religion.” See O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (citing Cruz v.
Beto, 405 U.S. 319, 322 (1972) (per curiam)). Nonetheless, “[l]awful incarceration brings about
the necessary withdrawal or limitation of many privileges and rights, a retraction justified by the
considerations underlying our penal system.” Price v. Johnston, 334 U.S. 266, 285 (1948). A
prison regulation impinging on constitutional rights is valid if it is reasonably related to
legitimate penological interests. See Turner v. Safley, 482 U.S. 78, 89 (1987). Indeed, the role
of the federal judiciary is not to micro-manage state prisons or to determine how a particular
prison might be more beneficently operated; the expertise of prison officials must be given due
deference. See Sandin v. Conner, 515 U.S. 472, 482 (1995).
Under RLUIPA, the government is prohibited from imposing a “substantial burden on the
religious exercise of a person residing in or confined to an institution” unless the government
demonstrates that the imposition of that burden furthers a “compelling governmental interest” by
the least restrictive means. 42 U.S.C. § 2000cc-1(a)(1)-(2). Although RLUIPA does not define
the term “substantial burden,” the United States Court of Appeals for the Fourth Circuit has held
that a “substantial burden on religious exercise occurs [under RLUIPA] when a state or local
government, through act or omission, ‘put[s] substantial pressure on an adherent to modify his
behavior and to violate his beliefs.’” Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006)
(quoting Thomas v. Review Bd. of Ind. Emp’t Sec. Div., 450 U.S. 707, 718 (1981)). “On the
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opposite end of the spectrum . . . a government action or regulation does not rise to the level of a
substantial burden on religious exercise if it merely prevents the adherent from either enjoying
some benefit that is not otherwise generally available or acting in a way that is not otherwise
generally allowed.” Adkins v. Kaspar, 393 F.3d 559, 570 (5th Cir. 2004). “Religious exercise”
in this context includes “any exercise of religion, whether or not compelled by, or central to, a
system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A).
A plaintiff asserting a claim under RLUIPA must allege that: (1) he seeks to engage in an
exercise of religion; and (2) the challenged practice substantially burdens that exercise. 42
U.S.C. § 2000cc-2(b). Once the plaintiff establishes a prima facie case, the burden of persuasion
shifts to the defendants to show that their practice is the least restrictive means of furthering a
compelling government interest. Lovelace, 472 F.3d at 185 (citing 42 U.S.C. § 2000cc-1(a)).
Although RLUIPA forbids judicial inquiry into the question of whether a particular belief or
practice is “central” to a prisoner's religion, 42 U.S.C. § 2000cc-5(7)(A), RLUIPA protects only
those beliefs or practices that are both sincerely held and rooted in religious belief. See Cutter v.
Wilkinson, 544 U.S. 709, 725 n.13 (2005) (noting that, under RLUIPA, “prison officials may
appropriately question whether a prisoner’s religiosity, asserted as a basis for a request for a
requested accommodation, is authentic” and whether his “professed religiosity” is “sincere”).
Here, taking Plaintiff’s allegations as true, and construing all inferences in his favor, the
Court finds that Plaintiff’s claims for violation of his right to the free exercise of his religion
under the First Amendment and his rights under the RLUIPA are not clearly frivolous.
Therefore, Plaintiff's action survives initial review.
B.

Plaintiff’s Various Motions

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First, in Plaintiff’s Motion to Submit Evidence, he has attached for the Court’s review the
Policies and Procedures for the North Carolina Prisons Food and Nutrition Management. The
Court will grant Plaintiff’s motion to the extent that Plaintiff may rely on these documents if the
action proceeds to the summary judgment stage and/or trial.
Next, as to Plaintiff’s “Motion to Substitute Party,” Plaintiff asks the Court to substitute
the name John Doe in the original Complaint for the current Director of North Carolina Prisons.
(Doc. No. 7 at 1). As to Plaintiff’s Motion to Amend, Plaintiff also seeks to amend his
Complaint to “amend the Defendant title to the N.C. DOP and the ‘John Does’ that [are] Behind
the N.C. D.O.P.” (Doc. No. 12 at 1). The Court will deny both motions as moot because
Plaintiff has filed an Amended Complaint, which superseded the original Complaint. See Pac.
Bell Tel. Co. v. Linkline Commc’ns, Inc., 555 U.S. 438, 456 n.4 (2009).
Next, as to Plaintiff’s Motion for Temporary Restraining Order, Plaintiff seeks a
temporary restraining order essentially requiring Defendants to show cause as to why they are
not preparing Kosher meals to Lanesboro inmates as ordered by Central Prison and in a manner
that Plaintiff believes they should be prepared. (Doc. No. 8). In a separate motion, Plaintiff also
seeks an order from the Court requiring Defendants to order an Emergency Temporary Kosher
Tray for all Kosher inmates. (Id. at 9). The Court will deny both motions, as Plaintiff has not
shown that he is likely to succeed on the merits or that he is likely to suffer irreparable harm in
the absence of preliminary relief.4 See Winter v. Natural Res. Council, 555 U.S. 7 (2008).
Finally, as to Plaintiff’s Motion to Appoint Counsel, Plaintiff seeks counsel based on the

Furthermore, Plaintiff’s motions for a temporary restraining order and a preliminary injunction
as to any violations committed while he was at Central Prison are moot because he is now
incarcerated at Lanesboro.
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fact that he is incarcerated and cannot afford counsel, that he has limited knowledge of the law
and the issues in this case are complex, that he has no access to a law library, and that he has not
been able to obtain private counsel. See (Doc. No. 14). There is no absolute right to the
appointment of counsel in civil actions such as this one. Therefore, a plaintiff must present
“exceptional circumstances” in order to require the Court to seek the assistance of a private
attorney for a plaintiff who is unable to afford counsel. Miller v. Simmons, 814 F.2d 962, 966
(4th Cir. 1987). Notwithstanding Plaintiff’s contentions to the contrary, this case does not
present exceptional circumstances that justify appointment of counsel. Therefore, Plaintiff’s
Motion to Appoint Counsel will be denied.
IV.

CONCLUSION
IT IS, THEREFORE, ORDERED that:
1.

Plaintiff’s Motion to Submit Evidence, (Doc. No. 6); Plaintiff’s Motion to
Substitute Party, (Doc. No. 7); Plaintiff’s Motion for Temporary Restraining
Order, (Doc. No. 8); Plaintiff’s Motion for Emergency Temporary Kosher Tray
[to] be Ordered for All Kosher Inmates, (Doc. No. 9); Plaintiff’s Motion to
Amend Defendant Title, (Doc. No. 12); and Plaintiff’s Motion to Appoint
Counsel, (Doc. No. 14), are all DENIED.

2.

This matter survives initial review pursuant to 1915(e) and 1915A.

3.

IT IS FURTHER ORDERED THAT, in accordance with 28 U.S.C. § 1951(d),
the Clerk of this Court is respectfully instructed to issue process and to provide
such process along with sufficient service copies of the Complaint, as well as
copies of this Order, to the United States Marshal. The Clerk shall provide
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Plaintiff with summonses forms to fill out for each Defendant and return to this
Court. The United States Marshal shall then serve a copy of the Complaint,
Summonses, and this Order upon Defendants in accordance with Rule 4, Federal
Rules of Civil Procedure. All costs of service shall be advanced by the United
States.

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