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Cooper v. Evans

June 17, 2009

MICHAEL COOPER, PLAINTIFF,
v.
JOHN EVANS, ET AL., DEFENDANTS.



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

MEMORANDUM AND ORDER

Plaintiff, an inmate in the Pinckneyville Correctional Center, brings this action for deprivations of his constitutional rights pursuant to 42 U.S.C. § 1983. This case is now before the Court for a preliminary review of the complaint pursuant to 28 U.S.C. § 1915A, which provides:

(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). An action fails to state a claim upon which relief can be granted if it does not plead "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1974 (2007). A complaint is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. ___, 2009 WL 1361536, *13 (May 18, 2009).

THE COMPLAINT

Plaintiff, a practicing Buddhist, requires "octo-lacto" meals, which can be composed of milk, eggs, and vegetables but no other animal products. Plaintiff contends that while he was confined at Big Muddy Correctional Center he requested the appropriate meals from the Defendants, but his meals were prepared improperly on multiple occasions, containing items of either pork and/or beef. As a result, Plaintiff was not able to practice his religion. In an affidavit attached to the complaint, a witness claims that after Plaintiff brought the matter of his improperly prepared meals to the attention of prison staff, Defendant Cooksey directed kitchen employees to purposefully "scar" Plaintiff's meals. "Scarring" is described as a form of off-the-record punishment, though no further description is provided.

DISCUSSION

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 claim that Defendants Evans and Cooksey violated Plaintiff's First Amendment rights regarding his religious diet.

Prison officials may not retaliate against inmates for filing grievances or otherwise complaining about their conditions of confinement. See, e.g., Walker v. Thompson, 288 F.3d 1005 (7th Cir. 2002); DeWalt v. Carter, 224 F.3d 607 (7th Cir. 2000); Babcock v. White, 102 F.3d 267 (7th Cir. 1996); Cain v. Lane, 857 F.2d 1139 (7th Cir. 1988). An action is considered retaliatory if it would "'deter a person of ordinary firmness'" from exercising his First Amendment rights in the future. Bridges v. Gilbert, 557 F.3d 541, 552 (7th Cir. 2009) (quoting, Bart v. Telford, 677 F.2d 622, 625 (7th Cir. 1982)). Because no further description of the term "scarring" is provided, it is difficult to determine whether a person of "ordinary firmness" would be deterred in the future from filing grievances. The attached affidavit, however, states that Plaintiff gave up taking food trays because of the "scarring" and it is reasonable to infer that "scarring" is a sufficiently adverse action so as effect Plaintiff's exercise of his rights. Therefore, Plaintiff's claim that Defendant Cooksey retaliated against him for exercising his First Amendment rights survives review under § 1915A.

MOTION TO APPOINT COUNSEL

Also before the Court is Plaintiff's motion to appoint counsel (Doc. 4). There is no absolute right to appointment of counsel in a civil case. Cook v. Bounds, 518 F.2d 779 (4th Cir. 1975); Peterson v. Nadler, 452 F.2d 754 (8th Cir. 1971). When presented with a request to appoint counsel, the Court must make the following inquiries: "(1) has the ... plaintiff made a reasonable attempt to obtain counsel or effectively been precluded from doing so and (2) given the difficulty of the case, does the plaintiff appear competent to litigate it himself." Pruitt v. Mote, 503 F.3d647, 854-55 (7th Cir. 2007). With regard to the first step of the inquiry, Plaintiff vaguely asserts that he "made several attempts to acquire council [sic] pro bono" but that he received "no response." Based on this allegation the ...


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