Opinion
2:01-CV-0169
August 14, 2003
MEMORANDUM OPINION AND ORDER OF DISMISSAL
Plaintiff KEITH DEVAUGHN NICKERSON, II, acting pro se and while a prisoner confined in the Texas Department of Criminal Justice, Institutional Division, has filed suit pursuant to Title 42, United States Code, Section 1983 complaining against the above-referenced defendants and has been granted permission to proceed in forma pauperis.
By his Original Complaint, plaintiff alleges that, on September 1, 2000, defendant THOMAS, acting arbitrarily, revised TDCJ policy regarding vegetarian diets thereby allowing vegetarian inmates to be given eggs and dairy products and providing that beans and bread were to be substituted for meat portions of meals. Plaintiff alleges defendant CAMPBELL has followed that policy and, also, does not provide bread and beans as a substitute at breakfast meals. Plaintiff claims that, by these acts and omissions, the defendants have violated his religious rights as a "true vegetarian" not to consume animal byproducts.
By his October 19, 2001, response to the Court's Questionnaire, when asked whether he was a vegetarian because of his religious or because of his philosophical beliefs, plaintiff responded it was "[m]ostly [his] philosophical beliefs, which contain [his] religious beliefs." Plaintiff stated that, although prison records reflected he was a Rastafarian, he was actually a pantheist.
Plaintiff requests injunctive relief requiring THOMAS to return TDCJ policy to the prior policy, accommodating true or strict vegetarians' religious beliefs and substitute peanut butter, extra bread, fruits, cereals, or whatever vegetables are being served for the main course at any and all meals.
JUDICIAL REVIEW
When a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity, the Court must evaluate the complaint and dismiss it without service of process, Ali v. Higgs, 892 F.2d 438, 440 (5th Cir. 1990), if it is frivolous, malicious, fails to state a claim upon which relief can be granted, or seeks monetary relief from a defendant who is immune from such relief. 28U.S.C. § 1915A; 28 U.S.C. § 1915(e)(2). The same standards will support dismissal of a suit brought under any federal law by a prisoner confined in any jail, prison, or other correctional facility, where such suit concerns prison conditions. 42 U.S.C. § 1997e(c)(l). A Spears hearing need not be conducted for every pro se complaint. Wilson v. Barrientos, 926 F.2d 480,483 n. 4 (5th Cir. 1991).
A claim is frivolous if it lacks an arguable basis in law or in fact, Booker v. Koonce, 2 F.3d 114, 115 (5th Cir. 1993); see, Denton v. Hernandez, 504 U.S. 25, 112 S.Ct. 1728, 1733, 118 L.Ed.2d 340 (1992).
Cf, Green v. McKaskle, 788 F.2d 1116, 1120 (5th Cir. 1986) ("Of course, our discussion of Spears should not be interpreted to mean that all or even most prisoner claims require or deserve a Spears hearing. A district court should be able to dismiss as frivolous a significant number of prisoner suits on the complaint alone or the complaint together with the Watson questionnaire.").
The District Judge has reviewed plaintiff's pleadings to determine if his claims present grounds for dismissal or should proceed to answer by defendants.
THE LAW AND ANALYSIS
Initially, the Court notes plaintiff, in his original complaint, repeatedly references the religious beliefs of vegetarians and in his questionnaire response, identifies his philosophy as the primary source of his vegetarian ideals. Of course, vegetarianism is not a religion; and pantheism can be approached either as a philosophy, as plaintiff asserts, or as a religion. However, if plaintiff's vegetarian ideals spring from his philosophy, they are not "rooted in religion" and do not qualify for protection by the free exercise clause." Wiggins v. Sargent, 753 F.2d 664,666 (8th Cir. 1985) (citing Thomas v. Review Bd. of the Indiana Employment Security Division., 450 U.S. 707, 713, 101 S.Ct. 1425, 1429, 67 L.Ed.2d 624 (1981)).
Moreover, even if plaintiff s desire to practice strict vegetarianism is the product of a sincerely held belief rooted in religion, the law in this Circuit is that prisons need not respond to particularized religious dietary requests such as plaintiff's. Udey v. Kastner, 805 F.2d 1218, 120-21 (5th Cir. 1986); Kahey v. Jones, 836 F.2d 948, 950 (5th Cir. 1988).
The Court recognizes the apparent conflict between Udey v. Kastner, 805 F.2d 1218, 120-21 (5th Cir. 1986) and Kahey v. Jones, 836 F.2d 948, 950 (5th Cir. 1988) on the one hand, and the dicta in Eason v. Thaler, 14 F.3d 8, 10 (5th Cir. 1994), that, absent some legitimate penological interest preventing the accommodation of a prisoner's religious restrictions, food which is anathema to an inmate because of his religion is at least arguably inadequate. However, the instant case involves the state prison system, not a city or county jail, and involves a particularized request, not a generalized request, for a diet on grounds which this Court concludes are not religious. Further, should these cases truly conflict, in such a case, the first of conflicting panel decisions should control. Paura v. United States Parole Commission, 18 F.3d 1188, 1189 (5th Cir. 1994). Consequently, this claim is controlled by the earlier cases of Udey and Kahey.
Further, the results reached in Udey v. Kastner, 805 F.2d 1218, 120-21 (5th Cir. 1986) and Kahey v, Jones, 836 F,2d 948,950 (5th Cir. 1988), demonstrate that a refusal to accord inmates particularized dietary requests is neither irrational nor arbitrary, even when those requests were based upon a sincerely-held belief rooted in religion. A fortiori, such refusal is not irrational nor arbitrary when the request is not based upon a sincerely-held belief rooted in religion but, instead, on a philosophical system.
For the reasons set forth above, plaintiff's claims against defendants THOMAS and CAMPBELL lack an arguable basis in law or in fact and are frivolous. Neitzke v. Williams, 490 U.S. 319, 325, 109 S.Ct. 1827, 1831, 104 L.Ed.2d 338 (1989).
Lastly, plaintiff complains there is no substitution of beans and bread on the breakfast tray. The grievance plaintiff submitted on this claim concerned a breakfast tray which consisted of eggs and biscuits, which plaintiff apparently feels should have been tailored to his needs by replacing the eggs with beans. Prison officials responded that no substitutions were made on breakfast trays unless they contained a meat product, which that tray did not have. To the extent plaintiff is attempting to reassert his claim for a strict vegetarian diet, that claim has already been addressed.
In its prohibition of "cruel and unusual punishments," the Eighth Amendment imposes duties on these officials, who must provide humane conditions of confinement; prison officials must ensure that inmates receive adequate food, clothing, shelter and medical care, and must "take reasonable measures to guarantee the safety of the inmates." Farmer v. Brennan, 511 U.S. 825, 114 S.Ct 1970, 1976, 128 L.Ed.2d 811 (1994) (quoting Hudson v. Palmer, 468 U.S. 517, 526-527, 104 S.Ct. 3194, 3200, 82 L.Ed.2d 393 (1984)). See, also, Newman v. Alabama, 559 F.2d 283,286 (5th Cir. 1977) (state must furnish its prisoners with reasonably adequate food). The meals must be well-balanced and contain nutritional value to preserve health. Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir. 1977). Plaintiff has not alleged any fact indicating the constitutional minimum is not satisfied and, therefore, has failed to state a claim on which relief can be granted.
CONCLUSION
Pursuant to Title 28, United States Code, section 1915A and section 1915((e)(2), as well as Title 42, United States Code, section 1997e(c)(1),IT IS HEREBY ORDERED that the Civil Rights Complaint filed pursuant to Title 42, United States Code, Section 1983, by plaintiff KEITH DEVAUGHN NICKERSON, II, is DISMISSED WITH PREJUDICE AS FRIVOLOUS AND FOR FAILURE TO STATE A CLAIM ON WHICH RELIEF CAN BE GRANTED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
A copy of this Order shall be mailed to plaintiff and to any attorney of record by first class mail. The Clerk shall also mail copies of this Order of Dismissal to TDCJ-Office of the General Counsel, P.O. Box 13084, Austin, TX 78711; and to the Pro Se Clerk at the U.S. District Court for the Eastern District of Texas, Tyler Division.
IT IS SO ORDERED.