Morales v. Pallito
Filing
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OPINION AND ORDER: GRANTING 1 Motion for Leave to Proceed in forma pauperis; CONSOLIDATING cases (with 1:13-cv-142); and DISMISSING case pursuant to 28 U.S.C. § 1915A(b)(1) for failure to state a claim. The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal would not be taken in good faith and, therefore, in forma pauperis status is denied for purpose of an appeal. Signed by District Judge J. Garvan Murtha on 6/19/2013. (wjf)
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
Martin Demetrio Morales,
Plaintiff,
v.
Andrew Pallito,
Defendant.
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Case Nos. 1:13-cv-141
1:13-cv-142
OPINION AND ORDER
Plaintiff Martin Demetrio Morales, a Vermont prisoner
proceeding pro se, seeks to bring two identical actions against
Vermont Department of Corrections (“DOC”) Commissioner Andrew
Pallito, each challenging the constitutionality of raising an
American flag over Vermont’s prisons.
Now before the Court are
Morales’s motions to proceed in forma pauperis.
Because Morales
has made the showing of poverty required under 28 U.S.C. § 1915,
his motions are GRANTED.
In both cases, Morales contends that raising an American
flag on DOC property constitutes “an establishment of religion”
and “coerces prisoners into worship[]ing [the United States]
government as one would revere a deity.”
Morales also asserts
that the American flag “is a symbol of oppression, imperialism,
racism; among other things,” and further symbolizes the pledge of
allegiance, “in which the words ‘under God’ blatantly violates
the separation of church and state.”
Because the claims in these
two actions are identical, the Court first considers
consolidation.
Rule 42(a) of the Federal Rules of Civil Procedure provides:
“[i]f actions before the court involve a common question of law
or fact, the court may . . . consolidate the actions.”
Civ. P. 42(a)(2).
Fed. R.
“The trial court has broad discretion to
determine whether consolidation is appropriate.”
Johnson v.
Celotex Corp., 899 F.2d 1281, 1284-85 (2d Cir. 1990).
Moreover,
a "district court can consolidate related cases under Federal
Rule of Civil Procedure 42(a) sua sponte.”
Devlin v. Transp.
Commc’ns Int’l Union, 175 F.3d 121, 130 (2d Cir. 1999); see also
Endress v. Gentiva Health Servs., Inc., 278 F.R.D. 78, 81
(E.D.N.Y. 2011).
“In assessing whether consolidation is
appropriate in given circumstances, a district court should
consider both equity and judicial economy.”
Devlin, 175 F.3d at
130.
Here, Morales is bringing the same claim against the same
Defendant in both cases.
Commissioner Pallito has not yet been
served and, consequently, there has been no responsive pleading
and no discovery.
The Court thus finds that the interests of
justice will be best served by consolidation, as carrying these
two actions forward as one enhances judicial economy, with no
prejudice to any party.
The cases are therefore CONSOLIDATED,
and Case No. 1:13-cv-141 shall become the lead case.
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Next, the Prison Litigation Reform Act, 28 U.S.C. § 1915A,
requires the Court to conduct an initial screening of a
prisoner’s in forma pauperis action, and to dismiss the case if
it “(1) is frivolous, malicious, or fails to state a claim on
which relief may be granted; or (2) seeks monetary relief from a
defendant who is immune from such relief.”
see also 28 U.S.C. § 1915(e)(2)(B).
28 U.S.C. § 1915A(b);
In conducting this initial
review, the Court must assume the truth of “all well-pleaded,
nonconclusory factual allegations” set forth in the Complaint.
Kiobel v. Royal Dutch Petroleum Co., 621 F.3d 111, 123 (2d Cir.
2010).
Also, pro se complaints are held to less stringent
standards than those drafted by attorneys, and the Court is
required to read the Complaint liberally, interpreting it as
raising the strongest arguments it suggests.
Hughes v. Rowe, 449
U.S. 5, 9 (1980); Sealed Plaintiff v. Sealed Defendant #1, 537
F.3d 185, 191–93 (2d Cir. 2008).
Even under these liberal standards, Morales fails to state a
claim on which relief may be granted.
His fundamental assertion
is that flying an American flag over Vermont prisons violates
inmates’ First Amendment rights by coercing them to “worship” the
flag “as one would revere a deity.”
There is no claim, however,
that Morales has been required to salute, take a pledge, or
otherwise acknowledge the flag, as his only objection is to its
“raising.”
Furthermore, the flag itself is a secular symbol of
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our nation, and does not promote any form of religion.
See,
e.g., Adland v. Russ, 307 F.3d 471, 486-87 (6th Cir. 2002)
(referring to the American flag as “a revered secular symbol”);
Am. Civil Liberties Union v. City of St. Charles, 794 F.2d 265,
271 (7th Cir. 1986) (noting that the five-pointed star is “used
in the American flag, and in many other secular settings”).
Indeed, the Supreme Court has acknowledged that the flag
represents “proud traditions ‘of freedom, or equal opportunity,
[and] of religious tolerance . . . .’”
Elk Grove Unified Sch.
Dist. v. Newdow, 542 U.S. 1, 6, (2004) (quoting Texas v. Johnson,
491 U.S. 397, 405 (1989)).
When considering an Establishment Clause claim, as Morales
presents here, “neutrality is the ‘touchstone’ of First Amendment
analysis.”
Skoros v. City of New York, 437 F.3d 1, 16 (2d Cir.
2006) (quoting McCreary Cnty. v. Am. Civil Liberties Union, 545
U.S. 844, 860 (2005)).
The Supreme Court has articulated the
three-part Lemon test for evaluating challenges under the
Establishment Clause when a government action interacts with
religion: the action “(1) ‘must have a secular . . . purpose,’
(2) must have a ‘principal or primary effect . . . that neither
advances nor inhibits religion,’ and (3) ‘must not foster an
excessive government entanglement with religion.’”
Bronx
Household of Faith v. Bd. of Educ. of City of New York, 650 F.3d
30, 40 (2d Cir. 2011) (quoting Lemon v. Kurtzman, 403 U.S. 602,
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612–13 (1971)); Skoros, 437 F.3d at 17.
The claim in this case
fails each part of the test, as the American flag is a secular
symbol, does not advance religion, and thus does not represent
any government involvement in religion.
Morales also brings an indirect challenge to the pledge of
allegiance, claiming that the flag is a symbol of the pledge, and
that the pledge itself is unlawful because it includes the words
“under God.”
Although the words of the pledge speak about the
flag and its significance, the flag itself does not serve as a
“symbol” of pledge.
(Doc. 1-3 at 5.)
In fact, it is the pledge
that declares loyalty to the flag “and the Republic that [the
flag] represents.”
Newdow, 542 U.S. at 31 (Rehnquist, C.J.,
dissenting).
The Court therefore finds that Morales’s First Amendment
claim with respect to the “raising of US flags on the property of
the VT DOC” must be DISMISSED for failure to state a claim on
which relief may be granted.
Id. at 4.
The Second Circuit has
held that, in general, a court should not dismiss a pro se
complaint “without granting leave to amend at least once when a
liberal reading of the complaint gives any indication that a
valid claim might be stated.”
Cuoco v. Moritsugu, 222 F.3d 99,
112 (2d Cir. 2000) (internal quotation marks and citation
omitted).
However, a court may deny an opportunity to amend
“when amendment would be futile.”
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Fulton v. Goord, 591 F.3d 37,
45 (2d Cir. 2009) (internal quotation marks and citation
omitted).
Here, Morales is pursuing a cause of action that has
no merit, and that better pleading will not cure.
F.3d at 112.
See Cuoco, 222
The Court thus declines to grant leave to amend.
For the reasons set forth above, Morales’s motions to
proceed in forma pauperis are GRANTED, the two above-captioned
actions are CONSOLIDATED, and this case is DISMISSED pursuant to
28 U.S.C. § 1915A(b)(1) for failure to state a claim.
The Court
certifies pursuant to 28 U.S.C. § 1915(a)(3) that any appeal
would not be taken in good faith and, therefore, in forma
pauperis status is denied for purpose of an appeal.
Coppedge v.
United States, 369 U.S. 438, 444–45 (1962).
Dated at Brattleboro, in the District of Vermont, this
19 th day of June, 2013.
/s/ J. Garvan Murtha
Honorable J. Garvan Murtha
United States District Judge
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