Arnold Lee Vance, Appellant, v. Holland Manfred, Warden, Wv Penitentiary; Leonard M. Payne,institutional Chaplin and in Both Their Officialand Individual Capacity, Appellees, 804 F.2d 678 (4th Cir. 1986)

This appeal from the judgment of the district court dismissing the civil rights complaint pursuant to 42 U.S.C. § 1983, of Arnold Lee Vance for failure to state a claim, presents the issue of whether denial of permission to form an association of atheists in a penal institution violated first amendment rights. We do not believe that it does, and affirm.

It is contended by the plaintiff on appeal that defendants' denial of meeting rights and office space to an organized group of atheist inmates is a denial of their free exercise rights, sufficient to state a claim for an injunction under 42 U.S.C. § 1983; that the furnishing of such rights to other groups expressing belief in a supreme being is an officially expressed preference for religion constituting an establishment of religion; and that the denial of such rights to an atheist inmate group which has among its goals the separation of church and state is a denial of free speech rights. The defendants contend that the plaintiff has failed to state a personal deprivation.

Upon consideration of the record, written briefs, and oral arguments of counsel, we are of the opinion that the district court did not commit error in dismissing the complaint, with prejudice, on the ground that it did not state a claim. On the other hand, we suggest to the West Virginia prison authorities that the establishment clause of the Constitution precludes the submission of complaints such as this to the prison's chaplain for decision rather than to the secular authorities.

Accordingly, the judgment of the district court is

AFFIRMED.