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Levi Hawkins, A/K/A Levi Mcrae Luginbyhl, Jr., #10089-062 v. Lisa J.W. Hollingsworth

November 15, 2011


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


Plaintiff, an inmate currently in the United States Penitentiary in Terre Haute, Indiana, was at all times relevant to this action held in the United States Penitentiary in Marion, Illinois. Plaintiff brings this action for alleged violations of his constitutional rights by persons acting under the color of federal authority. See Bivens v. Six Unknown Named Agents, 403 U.S. 388 (1971). 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, 550 U.S. 544, 570 (2007). Upon careful review of the complaint and any supporting exhibits, the Court finds it appropriate to exercise its authority under § 1915A; portions of this action are subject to summary dismissal.*fn1


Plaintiff is a member of the religious group House of Yahweh. He requested the right to assemble on his Sabbath; time for prayer, studying, and meditation; and the right to watch video sermons of the elders of his faith. Plaintiff's religious group was not given its own religious observation time; instead, Defendant Roloff coupled Plaintiff's group with another religious group. Although tapes, videos, and books concerning the House of Yahweh are available, the time spent waiting in line to retrieve these items cuts into worship time. Further, Plaintiff has been consistently denied a religious diet and is instead provided standard prison food, which allegedly contains hormones, antibiotics, steroids, microwaves, herbicides, pesticides, chemicals, microorganisms, bacteria, and parasites. Plaintiff also is denied kosher food, real sea salts, sugars, butter, wine, honey, and other needed supplements.

At some unspecified time or times, Plaintiff's requests for copies, postage, and other materials necessary to file proper court claims were denied. Defendants Deaton and Bryson specifically refused Plaintiff's request for copies and notary services, and Defendant Deaton subsequently stole documents that Plaintiff asked him to copy.

On April 13, 2011, the prison's legal instruments examiner, who is not named as a party in this action, informed inmates that grievances could no longer be received through the mail but must "go through unit team our inmate counselors [sic]" (Doc. 10, p. 18). Plaintiff attempted to comply with this procedure, but he was denied, and the proper authorities were not notified.

On yet another unspecified date, Plaintiff was given a disciplinary hearing.*fn2 At the hearing, there was no tape or video recording, and the facts attested to in the hearing were not independently verified. The policies that governed both the hearing and the appeal were ambiguous and did not provide specific time frames for action to be taken.

Plaintiff was placed in segregation at some point, and Defendants Benet and Bryson confiscated his private property without keeping a log book documenting what property was taken and when. Plaintiff's property was later lost without a record ever having been completed as to its confiscation. Plaintiff was told that if he did not sign a property release form releasing officials of liability, even more of his property would be taken. When Plaintiff asked about this practice, he was informed that Defendant Ormandy ordered that property confiscated as contraband does not need to be reported.

On other unspecified dates, Plaintiff was subjected to retaliation by Defendants Runge, Deaton, Baney, Bryson, Benet, and Lewis for the filing of grievances. Defendant Runge made false statements against Plaintiff; Defendant Deaton denied Plaintiff a fair disciplinary hearing and postage; Defendant Baney wrote Plaintiff disciplinary tickets for bribery and threats; Defendant Bryson denied Plaintiff copies, postage, and threw his property away; Defendant Benet stole property from Plaintiff and assaulted him by throwing a shower shoe; and Defendant Lewis used an old misconduct policy to discipline Plaintiff.


To facilitate the orderly management of future proceedings in this case, and in accordance with the objectives of Federal Rules of Civil Procedure 8(e) and 10(b), the Court finds it appropriate to break the claims in Plaintiff's pro se amended complaint into numbered counts, as shown below. The parties and the Court will use these designations in all future filings and orders, unless otherwise directed by a judicial officer of this Court. The designation of these counts does not constitute an opinion as to their merit.

Count 1: Free Exercise of Religion

Plaintiff claims that his rights to the free exercise of religion were violated when he was denied the right to assemble, time for prayer and study, and the right to watch videos. He further claims that his rights were violated when Defendant Roloff failed to give Plaintiff's religious group its own observation time but, instead, placed the House of Yahweh with another religious group. Plaintiff also complains that he is denied a religious diet.

Incarcerated individuals retain the right to exercise their religious beliefs. Cruz v. Beto, 405 U.S. 319, 322 (1972). A prison regulation that infringes on inmates' constitutional rights is valid "only if it is reasonably related to legitimate penological interests." Turner v. Safley, 482 U.S. 78, 89 (1987). However, this does not mean that "these rights are not subject to restrictions and limitations." Bell v. Wolfish, 441 U.S. 520, 545 (1979). Prisoners do not "retain the same freedom to exercise their religion as they would in the world outside the prison, [but] they may not be denied basic rights of conscience." Thompson v. Commonwealth of Ky., 712 F.2d 1078, 1081 (6th Cir. 1983). A prison "need make only reasonable efforts to afford the inmates an opportunity to practice their faith." Al-Alamin v. Gramley, 926 F.2d 680, 687 (7th Cir. 1991). "In providing this opportunity, the efforts of prison administrators, when assessed in their totality, must be evenhanded." Id. at 686. "[W]hether inmates were deprived of 'all means of expression' [is] an important consideration in measuring the reasonableness" of the interference with free exercise. Woods v. O'Leary, 890 F.2d 883, 887 (7th Cir. 1989), citing O'Lone v. Estate of Shabazz, 482 U.S. 342, 352 (1987)). To succeed on his free exercise of religion claim, Plaintiff must establish that he was denied a basic right of conscience, Thompson, 712 F.2d at 1081, and that the prison did not make a reasonable and evenhanded effort to afford him the opportunity to practice his faith, AlAlamin, 926 F.2d at 686-87.

As to Plaintiff's claim that he was not allowed the right to assemble on his Sabbath, time for prayer, or videos to watch, restrictions on access to religious services and other opportunities are reviewed in light of four factors: (1) whether there is a valid and rational connection between the regulation prohibiting access and a legitimate governmental interest to justify it; (2) whether there are alternative means of exercising the right to practice religion that remain open to inmates; (3) whether accommodation of the right to practice would have a significant impact on prison staff or other inmates; and (4) whether the regulation is reasonable in terms of allowing prisoners use of available alternatives. Turner v. Safley, 482 U.S. 78 (1987); see also Beard v. Banks, 548 U.S. 521 (2006).

Although his religious group may not have had their own individual worship time slot, Plaintiff states that Defendant Roloff paired them with another group, indicating that his group did have a chance to assemble, though it may not have been on Plaintiff's Sabbath day. At this point, it is not clear to the Court whether Defendant Roloff had a reasonable, legitimate interest that would justify denying Plaintiff's request to have a worship time on his Sabbath and separate from other groups. Further, it is not clear whether Defendant Roloff was responsible for determining on what days groups ...

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