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El v. Evans

February 21, 2006

MONDREA VINNING EL, INMATE #B63459, PLAINTIFF,
v.
JOHN EVANS, CHAPLAIN SUTTON, UNKNOWN COUNSELOR, UNKNOWN GRIEVANCE OFFICER, DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Menard 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. Outstanding Motions

Currently pending before the Court is Plaintiff's motion for temporary restraining order or in the alternative, a preliminary injunction to order defendants, employees at Pinckneyville Correctional Center, to serve Plaintiff vegan meals (Doc. 2). Plaintiff filed this motion on August 9, 2005, at the same time he filed his complaint. On October 28, 2005, Plaintiff filed "A Motion Under 41(a) Voluntary Dismissal" (Doc. 7). In this motion he stated that he had been moved from Pinckneyville Correctional Center to Menard Correctional Center and therefore his request for injunctive relief was now moot; he asked that the claim be dismissed. Ten days later, on November 7, 2005, Plaintiff filed a "Motion to Withdraw 41(a) Voluntary Dismissal" (Doc. 8). In this motion Plaintiff clarified that with the prior motion to dismiss he intended to withdraw only his motion for temporary restraining order, but not his complaint for damages. Accordingly, Plaintiff's motion to dismiss his motion for injunctive relief (Doc. 7) is GRANTED and Plaintiff's Motion for Temporary Restraining Order or Preliminary Injunction (Doc. 2) is STRICKEN. Plaintiff's motion to withdraw the motion to dismiss (Doc. 8), because it really only clarifies the prior motion, is DENIED as moot.

Threshold Review

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.

Plaintiff states that he practices the Moorish American religion, which prohibits him from eating any meat or meat byproducts. He states that defendants, Department of Corrections employees at Pinckneyville Correctional Center, would not provide him with vegan meals to accommodate his religious practices. He states that as a result, he was forced to trade food with other inmates. He states that by eating only the non-meat products served to him, he lost a substantial amount of weight, had difficulty sleeping, experienced headaches, stomachaches, dizziness, constipation, and chronic fatigue.

The law is clear that a prisoner retains his or her First Amendment right to practice his religion, subject to prison regulations that do not discriminate between religions and are reasonably related to legitimate penological objectives. O'Lone v. Estate of Shabazz, 482 U.S. 342, 349 (1987); Turner v. Safley, 482 U.S. 78, 89 (1987); Sasnett v. Litscher, 197 F.3d 290, 292 (7th Cir. 1999). It is also well-settled that observance of religiously mandated dietary restrictions is a form of religious practice protected by the First Amendment. Hunafa v. Murphy, 907 F.2d 46, 47 (7th Cir. 1990)(citing cases). Accordingly, the Court is unable to dismiss Plaintiff's First Amendment claims regarding interference with his religious diet.

The Clerk is DIRECTED to prepare Form 1A (Notice of Lawsuit and Request for Waiver of Service of Summons) and Form 1B (Waiver of Service of Summons) for Defendants John Evans and Chaplain Sutton. The Clerk shall forward those forms, USM-285 forms submitted by Plaintiff, and sufficient copies of the complaint to the United States Marshal for service.

The United States Marshal is DIRECTED, pursuant to Rule 4(c)(2) of the Federal Rules of Civil Procedure, to serve process on Defendants John Evans and Chaplain Sutton in the manner specified by Rule 4(d)(2) of the Federal Rules of Civil Procedure. Process in this case shall consist of the complaint, applicable forms 1A and 1B, and this Memorandum and Order. For purposes of computing the passage of time under Rule 4(d)(2), the Court and all parties will compute time as of the date it is mailed by the Marshal, as noted on the USM-285 form. Service shall not be made on the Unknown (John Doe) Defendants until such time as Plaintiff has identified them by name on a USM-285 form and in a ...


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