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Moro v. Winsor

February 14, 2006

JOHN MORO, INMATE #B80245, PLAINTIFF,
v.
ANGELA WINSOR, REGIE ADAMS, UNKNOWN PARTY, GREGORY LAMBERT, JULIE WILKERSON, AND ROGER WALKER, DEFENDANTS.



The opinion of the court was delivered by: Gilbert, District Judge

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Big Muddy River Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. Plaintiff previously was granted leave to proceed in forma pauperis, and he has tendered his initial partial filing fee as ordered.

Now pending before the Court is Plaintiff's motion to amend his complaint (Doc. 8). This motion is GRANTED. The clerk shall file the amended complaint.

This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides, in pertinent part:

(a) Screening.-- The court shall review, before docketing, if feasible or, in any event, as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity.

(b) Grounds for Dismissal.-- On review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint--

(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.

28 U.S.C. § 1915A. An action or claim is frivolous if "it lacks an arguable basis either in law or in fact." Neitzke v. Williams, 490 U.S. 319, 325 (1989). Upon careful review of the complaint and any supporting exhibits, the Court finds that none of the claims in the complaint may be dismissed at this point in the litigation.

Factual Background

Plaintiff states that he practices the Ordo Templi Orientis ("OTO") religion, also known as Gnostic Catholics or Thelemites. He states that Defendants have prevented him and other inmates from practicing the religion in the following ways. Religious books and mail from OTO chaplains are sent for publication review instead of to the acting chaplain, causing significant delays in receipt. Tarot cards which are "essential to our religious practice" are banned from the prison. Defendants have an unwritten policy to exclude inmates, including Plaintiff, who practice the religion from obtaining jobs paying over $14.60 per month. Defendants have implemented a policy of transferring to another facility inmates who practice the religion and threaten to use the courts to obtain constitutional relief; Plaintiff himself was transferred to Shawnee Correctional Center when he threatened to use the courts to guarantee his religious practices. Plaintiff and other inmates have been denied religious tapes and lectures, use of the chapel, and religious items including yi ching sticks, an altar, a shrine, magical implements, sicils, talismans, symbols, pouches, abramelin oil, and prayer beads. Plaintiff states that grievances concerning his right to practice his religion have gone unanswered. Plaintiff further states that Defendants have refused to deal with his religious requests, thereby violating the First Amendment and Religious Land Use and Institutionalized Persons Act ("RLUIPA").

Legal Standard

Prisoners retain a First Amendment right to practice their religion, but a regulation that infringes an inmate's free exercise of religion will nonetheless survive constitutional challenge if prison administrators can establish that the regulation is a rational means of furthering a legitimate penological interest. O'Lone v. Estate of Shabazz, 482 U.S. 342, 351-52 (1987); Turner v. Safley, 482 U.S. 78, 89 (1987); Tarpley v. Allen County, Ind., 312 F.3d 895, 898 (7th Cir. 2002). On the other hand, RLUIPA, 42 U.S.C. § 2000cc-1 et seq., bars a state prison receiving federal funds from implementing general regulations that substantially burden an inmate's "religious exercise" absent a compelling interest, and even then the prison must employ the "least restrictive means" of promoting that interest. 42 U.S.C. § 2000cc-1(a); see Lindell v. McCallum, 352 F.3d 1107, 1110 (7th Cir. 2003).

Based on the foregoing, Plaintiff's claims cannot be dismissed at this point in the litigation. ...


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