Morgan v. Henderson et al, No. 1:2007cv00874 - Document 3 (N.D. Ga. 2007)

Court Description: ORDER AND OPINION DISMISSING CASE AS FRIVOLOUS pursuant to 28 USC 1915A, granting 2 motion for leave to proceed in forma pauperis for the purpose of dismissal only. Signed by Judge Thomas W. Thrash Jr. on 4/30/07. (dr)

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Case 1:07-cv-00874-TWT Document 3 Filed 04/30/2007 Page 1 of 3 IN THE UNITED STATES DI STRICT COURT FILED IN CHAMBEF FOR THE NORTHE RN DISTRICT OF GEORGIATH OMAS W. THRASH . S ¢ D~ L ¢ Atianta ATLANTA DIVISION U OLIN MORRIS JAMES MORGAN, Plaintiff, V. APR -3 0,"2007 JAMES N . HATTEN , Clrtc CIVIL ACTION NOT ° ePC+erk 1 :07-CV-0874-TWT TONY HENDERSON; DANNY HORNE, Defendants . ORDER AND O PINION Plaintiff, Olin Morris James Morgan, currently confined at the Phillips State Prison ("PSP") in Buford, Georgia, has submitted the instant action seeking relief under the American Indian Religious Freedom Act ("AIRFA"), 42 U .S .C . § 1996 . This matter is now before the Court for a 28 U .S .C . § 19 1 SA frivolity determination . The 28 U.S.C. § 191 5A Frivolity Review Pursuant to 28 U .S .C . § 1915A, a federal court is required to conduct an initial screening of a prisoner complaint to determine whether the action (1) is frivolous or malicious, or fails to state a claim on which relief may be granted, or (2) seeks monetary relief against a defendant who is immune from such relief . A claim is frivolous when it appears from the face of the complaint that the factual allegations are "clearly baseless" or that the legal theories are "indisputably meritless ." Carroll v. Gross, 984 F .2d 392, 393 ( 11th Cir . 1993) . A complaint may be dismissed for failure to state a claim when it appears beyond doubt that the plaintiff can prove no AO 7 2A ( Rev . 8/82) Case 1:07-cv-00874-TWT Document 3 Filed 04/30/2007 Page 2 of 3 set of facts in support of his claim which would entitle him to relief . Brower v . County of Invo, 489 U.S . 593, 597 (1989). In the instant action, Plaintiff sues PSP Warden Tony Henderson amd PSP Chaplain Danny Home . Plaintiff claims that Defendants violated the AIRFA by (1) failing to preserve a traditional Cherokee right of worship of the Great Spirit in which -sacred objects are passed to another brother and sister and (2) denying the brother to whom the sacred objects will be given the ability to properly use such objects in worship of the Great Spirit . Plaintiff seeks equitable relief . The AIRFA establishes the "policy of the United States to protect and preserve for American Indians their inherent right of freedom to believe, express, and exercise [their] traditional religions . . ., including but not limited to access to sites, use and possession of sacred objects, and the freedom to worship through ceremonials and traditional rites." 42 U .S .C . § 1996 . However, the AIRFA does not "create a cause of action or any judicially enforceable rights ." Lyng v. Northwest Indian Cemetery Protective Assn, 485 U .S . 439, 455 (1988) . Accordingly, Plaintiff cannot assert an actionable claim pursuant to the AIRFA . Conclusion Because Plaintiff has failed to state a claim upon which relief can be granted, the instant action is hereby DISMISSED pursuant to 28 U .S .C. § 1915A . 2 AO 7 2A (R ev .8182) Case 1:07-cv-00874-TWT Document 3 Filed 04/30/2007 Page 3 of 3 IT I S FURTHER ORDERED that Plaintiff s motion for leave to proceed in forma ap u~eris [Doc . 2] is GRANTED for the purpose of dismissal only . IT I S SO ORD ERED, this 3o . '' day of a `X 3. 2007. / THOMAS W . THRASH, JR . UNITED STATES DISTRICT JUDGE AO 72A (Rev .8182)

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