Michael Anthony Barnes, Plaintiff-appellant, v. Ludie M. Mann, Individually and in His Official Capacity Asfood Service Manager Ii, Defendant-appellee, 12 F.3d 211 (6th Cir. 1993)

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US Court of Appeals for the Sixth Circuit - 12 F.3d 211 (6th Cir. 1993) Nov. 22, 1993

E.D. Ky., No. 93-00083, Forester, J.

E.D. Ky.

AFFIRMED.

Before: KENNEDY, MILBURN and GUY, Circuit Judges.


ORDER

Michael Barnes, a pro se Kentucky prisoner, appeals a district court order dismissing, sua sponte, his complaint filed pursuant to 42 U.S.C. § 1983. This case has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon examination, this panel unanimously agrees that oral argument is not needed. Fed. R. App. P. 34(a).

Seeking monetary damages, a declaratory judgment and injunctive relief, plaintiff alleged that his First Amendment right to worship the Muslim religion was violated because the defendant failed to adequately provide food substitutes for pork when pork, pork-items, or pork derivatives were served. The case was submitted to a magistrate judge who recommended that the action be dismissed, sua sponte, without prejudice pursuant to 28 U.S.C. § 1915(d). Moreover, although plaintiff did not allege an Eighth Amendment violation, the magistrate judge concluded that to the extent the plaintiff asserted that he is malnourished, he failed to set forth facts to establish his claim. The district court reviewed the case de novo in light of plaintiff's objections and dismissed the case in accordance with the magistrate judge's recommendation. The district court also certified that an appeal of its order would not be frivolous.

Title 28 U.S.C. § 1915(d) empowers a court to dismiss an action brought in forma pauperis "if satisfied that the action is frivolous or malicious." A complaint may be dismissed as frivolous only when the plaintiff fails to present any claim with an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). Claims that lack an arguable basis in law include claims of infringement of a legal interest which clearly does not exist. Id. at 327-28.

Plaintiff asserts a legal interest which does not exist. He is not constitutionally entitled to a pork-free diet. Defendant is only required to prepare a diet sufficient to keep prisoners in good health, see Cunningham v. Jones, 667 F.2d 565, 566 (6th Cir. 1982) (per curiam); Kahane v. Carlson, 527 F.2d 492, 496 (2d Cir. 1975), or in the case of Muslims, a diet which provides them with adequate nourishment without the consumption of pork. See Ross v. Blackledge, 477 F.2d 616, 618-19 (4th Cir. 1973). To the extent plaintiff may be asserting he is malnourished, he has failed to properly plead such a claim.

Accordingly, we affirm for the reasons set forth in the magistrate's report and recommendation. Rule 9(b) (3), Rules of the Sixth Circuit.