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Smadi v. Michaelis

United States District Court, S.D. Illinois

June 28, 2019

HOSAM MAHER SMADI, #39482-177, Plaintiff,
v.
J. MICHAELIS, and WILLIAM TRUE, Defendants.

          MEMORANDUM AND ORDER

          J. PHIL GILBERT UNITED STATES DISTRICT JUDGE.

         Plaintiff Hosam Maher Smadi, an inmate with the Federal Bureau of Prisons (“BOP”) who is currently incarcerated at the United States Penitentiary located in Marion, Illinois (“USP Marion”), 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), and the Religious Freedom Restoration Act, 42 U.S.C. §§ 2000bb - 2000bb-4 (West 2019). Plaintiff originally brought this claim in Smadi v. True, No. 18-cv-02149-JPG (S.D. Ill.) and it was severed into this separate action. (Doc. 1). Plaintiff seeks monetary and injunctive relief.

         This case is now before the Court for a preliminary review of the Complaint pursuant to 28 U.S.C. § 1915A. Under Section 1915A, the Court is required to screen prisoner complaints to filter out non-meritorious claims. See 28 U.S.C. § 1915A(a). Any portion of a complaint that is legally frivolous, malicious, fails to state a claim upon which relief may be granted, or asks for money damages from a defendant who by law is immune from such relief, must be dismissed. 28 U.S.C. § 1915A(b). At this juncture, the factual allegations of the pro se Complaint are to be liberally construed. See Rodriguez v. Plymouth Ambulance Serv., 577 F.3d 816, 821 (7th Cir. 2009).

         The Complaint

         Plaintiff makes the following allegations in his Complaint: Plaintiff is a Sunni Muslim and adheres to the Salafi interpretation of Islam, which requires him to eat halal food. (Doc. 1, p. 20). Halal food must be prepared in a container that has not been used to cook or prepare other forbidden foods. Id. at p. 20. This preparation requirement includes preparing food in a microwave, and Plaintiff cannot eat food heated in a microwave that has been used to heat pork or other prohibited food. Id. Because of the manner in which it is prepared and the ingredients used, Kosher food does not meet the halal requirements. Id. Plaintiff informed Food Services Administrator J. Michaelis and Warden True of his dietary requirements, but they have only provided him with kosher meals and informed him that he may purchase halal items in the Commissary or through the Special Purpose Order procedures. Id. at pp. 14, 24. He is also required to use the same microwave as all the other inmates, which does not meet his religious requirements. Id. at p. 27.

         Discussion

         Based on the allegations of the Complaint, the Court finds it convenient to divide the pro se action into the following two counts.

Count 1: Defendants Michaelis and True denied Plaintiff halal meals and a separate microwave in violation of the Free Exercise Clause under the First Amendment.
Count 2: Defendants Michaelis and True denied Plaintiff halal meals and a separate microwave in violation of the Religious Freedom Restoration Act.

         The parties and the Court will use these designations in all future pleadings and orders, unless otherwise directed by a judicial officer of this Court. Any other claim that is mentioned in the Complaint but not addressed in this Order should be considered dismissed without prejudice as inadequately pleaded under the Twombly[1] pleading standard.

         Count 1

         Plaintiff cannot bring a claim under the Free Exercise clause of the First Amendment against federal officials pursuant to Bivens in light of the Supreme Court's decision in Ziglar v. Abbasi, 137 S.Ct. 1843 (2017). Ziglar suggests that the only valid contexts for constitutional claims against federal officers are those previously recognized by the Court under the Fourth, Fifth, and Eighth Amendments. The Supreme Court held that federal courts should not expand Bivens actions to reach contexts that the Supreme Court has not officially recognized unless “special factors” counsel otherwise. Ziglar, 137 S.Ct. at 1859-60. Plaintiff's First Amendment claim does not fit under any of the scenarios recognized as falling under Bivens; nor are there any “special factors” in this case that would urge expanding Bivens here. Further, the Supreme Court has stated, “[w]e have never held that Bivens extends to First Amendment claims.” Reichle v. Howards, 566 U.S. 658, 663 n.4 (2012). This Court has recently declined to extend Bivens to First Amendment claims. Borowski v. Baird, No. 16-cv-848-JPG, 2018 WL 6583976 (S.D. Ill.Dec. 14, 2018), aff'd, No. 19-1113, 2019 WL 2542750 (7th Cir. June 20, 2019); White v. Inch, No. 17-cv-1059-JPG, 2018 WL 6584899 (S.D. Ill.Dec. 14, 2018), aff'd on other grounds, No. 18-3720, 2019 WL 2542217 (7th Cir. June 20, 2019). In fact, “[n]ationwide, district courts seem to be in agreement that, post [Ziglar], prisoners have no right to bring a Bivens action for violation of the First Amendment.” Harris v. Dunbar, No. 17-cv-536-WTL, 2018 WL 3574736, at * 3 (S.D. Ind. July 25, 2018). Consistent with the Court's previous rulings, the Court declines to extend Bivens to Plaintiff's First Amendment Claim and so Count 1 is dismissed without prejudice.

         Count 2

         Under the Religious Freedom Restoration Act, the government "shall not substantially burden a person's exercise of religion even if the burden results from a rule of general applicability." 42 U.S.C. § 2000bb-1 (West 2019). A substantial burden is one that “bears direct, primary, and fundamental responsibility” for rending a religious exercise “effectively impartible.” Korte v. Sebelius, 735 F.3d 654, 682 (7th Cir. 2013). Furthermore, the Supreme Court has held that a government imposes a substantial burden when it “puts substantial pressure on an adherent to modify his behavior and violate his beliefs.” Thomas v. ...


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