Lackey v. Midget et al, No. 3:2012cv00820 - Document 11 (E.D. Va. 2014)
Court Description: MEMORANDUM OPINION. Signed by District Judge Robert E. Payne on 6/25/14. Copy sent: Yes(tdai, )
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IN THE UNITED FOR THE STATES DISTRICT COURT EASTERN DISTRICT OF VIRGINIA Richmond Division BERNARD LACKEY, Plaintiff, v. Civil Action No. J. MIDGET, 3:12CV820 et al., Defendants. MEMORANDUM OPINION Bernard Lackey, a Virginia inmate proceeding pro se and in forma pauperis, brings this action pursuant to 42 U.S.C. § 1983.l The matter U.S.C. is before the Court for evaluation pursuant to 28 § 1915(e) (2) . I. The Magistrate Judge BACKGROUND made the following findings recommendations: Preliminary Review Pursuant to the Prison Litigation Reform Act ("PLRA") this Court must dismiss any action filed by a 1 The statute provides, in pertinent part: Every person who, under color of any statute ... of any State . . . subjects, or causes to be subjected, any citizen of the United States person within the jurisdiction thereof deprivation of any rights, privileges, or or other to the immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law .... 42 U.S.C. § 1983. and prisoner if the Court determines the action (1) "is frivolous" or (2) "fails to state a claim on which relief may be granted." 28 U.S.C. § 1915(e)(2); see 28 U.S.C. § 1915A. The first standard includes claims based upon XMan indisputably meritless legal theory,'" or claims where the "^factual contentions are clearly baseless.'" Clay v. Yates, 809 F. Supp. 417, 427 (E.D. Va. 1992) (quoting Neitzke v. Williams, 490 U.S. 319, 327 (1989)). standard for a The second standard is the familiar motion 12(b) (6) . "A motion to to dismiss dismiss under under Fed. Rule R. Civ. 12(b) (6) P. tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 {4th Cir. 1992) (citation omitted). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). The Federal Rules of Civil Procedure "require[ ] only Aa short and plain statement of the claim showing that the pleader is entitled to relief, ' in order xgive the defendant fair notice of what the . to claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (second alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints "labels and conclusions" the elements omitted). sufficient of a Instead, "to claim that is a raise speculative level," or a cause "formulaic recitation of of action." plaintiff a id. containing only right to Id. must allege relief on its face," facial plausibility when the plaintiff pleads allows the court 570. rather "conceivable." that at to draw "A the the stating a merely content Id. facts above (citation omitted), "plausible (citation claim than has factual reasonable inference that misconduct alleged." the defendant Iqbal, is 556 liable U.S. at for 678 the (citing Bell Atl. Corp., 550 U.S. at 556). In order for a claim or complaint to survive dismissal for failure to state a claim, therefore, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)). Lastly, while the Court liberally construes pro se complaints, Gordon v. Leeke, 574 F.2d 1147, 1151 (4th Cir. 1978), it does not act as the inmate's advocate, sua sponte developing statutory and constitutional claims the inmate failed to clearly raise on the face of his complaint. See Brock v. (Luttig, Carroll, 107 F.3d 241, 243 (4th Cir. 1997) J., concurring); Beaudett v. City of Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985). Summary of Allegations and Claims Lackey contends that on one evening, the Riverside Regional Jail failed to adequately provide him with a full Ramadan meal. The allegations in Lackey's Complaint are as follows: On 7/27/12 approximately 2130 hrs when Ramadan tray[s] were being passed out at the control booth 5E didn't receive our proper right time meals. 5A, 5B, and 5D all received their trays. I addressed this situation to the unit control officer. Officer Rideout told me and everybody else from 5E that kitchen said they had run out of food. At that time, he proceeded to the kitchen to see for himself. Approximately 15 min. later, I was called back to unit control, and was told that he had only 1 Ramadan tray left. And if I could convince the others to except [sic] bag lunches. The tray and bag that we normally received contain[s] (a side of fish, rice, vegetable, 3 boiled eggs and 8 slices of wheat bread plus a fruit [)]. My tray didn't have any eggs and my fruit was rotten to the core. Furthermore, the served portion of food was not correct. The inmates received 2 bag lunches and Ramadan bag a piece. Their bags contain[ed] good fruit and boiled eggs. Lunch bags were not supposed to be served because bologna isn't a part of the Islamic diet for Ramadan. Also, white bread is not to be consumed. This evening of fasting my 1st amendment rights to practice my religious belief diet during the month of Ramadan was disturbed due to the kitchen staff not being prepared for the holy month of Ramadan. The kitchen supervisors M. Phillips and J. Midget were made aware of the problem. Nothing was done, because basically talked around the issue. And on my last lead of appeal Capt. Flippin did the exact same thing, talked around the issue. ... My 1st & 14th amendments were violated. (Compl. 5.) Lackey demands $100,500 and relocation "to D.O.C. asap so that I may practice my religious belief without problems." (Id. at 6.) Lackey names J. Midget, Kitchen Staff, M. Phillips, the Kitchen Supervisor, and Capt. Flippin as defendants. (Id. at 1-2.) As explained below, Lackey fails to state a claim a First or Fourteenth Amendment claim against defendants. Analysis In order to state a viable claim under 42 U.S.C. § 1983, a plaintiff must allege that a person acting under color of state law deprived him or her of a constitutional right or of a right conferred by a law of the Against United States. Poverty in Roanoke Valley, (4th Cir. See Dowe v. 145 Total F.3d Action 653, 658 1998) . To state a First Amendment claim, Lackey must allege facts that suggest that "(1) he holds a sincere belief that is religious in nature" and (2) that Defendants imposed a substantial burden on the practice of his religion. Whitehouse v. Johnson, No. I:10cvll75 Nov. 18, (CMH/JFA), 2011) 2011 WL 5843622, (citing Hernandez v. at *4 Comm'r, (E.D. Va. 490 U.S. 680, 699 (1989)). "Government officials impose a substantial burden on the free exercise of religion by xput[ting] substantial pressure on an adherent to modify his behavior and to violate his beliefs.'" Massenburg v. Adams, No. 3:08cvl06, 2011 WL 1740150, at *4 (E.D. Va. May 5, 2011) (alteration in original) (quoting Lovelace v. Lee, 472 F.3d 174, 187 (4th Cir. 2006) (some internal quotation marks omitted)) . A mere inconvenience to the exercise of religion fails to give rise to a First Amendment violation. McEachin v. McGuinnis, 357 F.3d 197, 203 n.6 (2d Cir. 2004) ("There may be inconveniences so trivial that they are most properly ignored.") Moreover, "[d]e minimis burdens on the free exercise of religion are not of constitutional dimension." Rapier v. Harris, 172 F.3d 999, 1006 n.4 Lackey (7th Cir. fails to 1999) allege (citations omitted). facts that indicate that Defendants imposed a substantial burden on his ability to practice his religion. Lackey contends that on one isolated evening, Defendants provided him with an incomplete Ramadan meal. Lackey makes no allegation that the meal he received failed to comport with his religious needs, but contends the meal provided had one missing item and contained inedible fruit. Lackey wholly fails to allege that defendants placed substantial pressure on him to modify and violate his religious beliefs by providing him with a single incomplete meal during the observance of Ramadan. Instead, Lackey's receipt of a partial meal amounts to a de minimis burden on his free exercise of religion. Id. (finding on summary judgment that provision of three improper meals out of 810 meals is a de minimis burden). Lackey Defendants alleges no interfered further with his facts showing observance of that Ramadan. Thus, he fails to allege facts that plausibly demonstrate a substantial burden on his religion. See Neal v. McKune, No. 11-3155-JTM, 2013 WL 1446791, *5-6 (D. Kan. Apr. 9, 2013) (granting motion to dismiss and concluding no substantial burden, but "an inconvenience," when inmate alleged three missed and six hurried breakfasts during two months of Ramadan); see also Garnica v. Wash. Dep't of Corr., F. Supp. 2d , 2013 WL 4094324, at *19 (W.D. Wash. Aug. 13, 2013); cf^ Norwood v. Strada, 249 F. App'x 269, 269-72 (3d Cir. 2007) (finding on summary judgment no substantial burden upon inmate's religious exercise when inmate denied seven religiously certified (halal) meals during three-day lockdown); Evans v. Jabe, No. 17, 3:11CV104, 2014) 2014 WL 202023, (concluding on at *8-9 summary (E.D. judgment Va. that Jan. no substantial burden on inmate's religious exercise occurred when inmate provided six incomplete or tardy meals during observance of Ramadan). Accordingly, Lackey states no First Amendment claim. The Equal Protection Clause of the Fourteenth Amendment requires that similarly situated persons be treated alike. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216 (1982)). In order to state an equal protection claim Lackey must allege that: (1) that he and a comparator were treated differently and were similarly different treatment See Veney v. situated; was Wyche, the and result 293 F.3d 726, (2) of that the discrimination. 730 (4th Cir. 2002) (citation omitted) . Lackey fails to allege facts that indicate Defendants treated him differently than any other similarly situated inmate. Accordingly, it is RECOMMENDED that Lackey's claims and the action be (May 12, 2014 Report and omission in original).) file objections days after the or DISMISSED. Recommendation (alterations and The Court advised Lackey that he could an amended entry of the complaint within fourteen Report and Recommendation. (14) Lackey has not responded. II. STANDARD OF REVIEW "The magistrate makes only a recommendation to this court. The recommendation has responsibility to make court." v. 1993) Estrada (citing Mathews a no final Witkowski, v. Weber, presumptive weight, determination 816 423 F. remains Supp. U.S. and 261, 408, the with this 410 270-71 (D.S.C. (1976)). This Court "shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which filing objection of district is objections judge to made." to focus a 28 U.S.C. § magistrate's attention on report 474 written U.S. 140, 147 this objection, (1985). Court In the may adopt enables the and dispute." Thomas v. absence of a specific a magistrate recommendation without conducting a de novo review. v. Colonial Cir. Life & Accident Ins. Co., "The issues factual those legal that are at the heart of the parties' Arn, 636(b)(1). 416 F.3d judge's See Diamond 310, 316 (4th 2005). III. There will be will be being no CONCLUSION objections, accepted and adopted. dismissed. The Clerk the Report and Recommendation Lackey's claims will directed be and the to action note the disposition of the action for purposes of 28 U.S.C. § 1915(g). The Clerk is directed to send a copy of the Memorandum Opinion to Lackey. /s/ Date: ^tv^- l^Tei*} Richmond, Virginia Robert E. Payne Senior United States District Judge
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