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Nance v. Miser

United States District Court, D. Arizona

October 21, 2014

Keith Preston Nance, Plaintiff,
Allen Miser, et al., Defendants.


STEPHEN M. McNAMEE, Senior District Judge.

Plaintiff Keith Preston Nance, who is confined in the Arizona State Prison Complex, South Unit, in Florence, Arizona, filed a pro se civil rights Complaint under 42 U.S.C. § 1983 and an Application to Proceed In Forma Pauperis. (Doc. 1, 3) On March 25, 2014, the case was referred to the Court's Early Mediation Program. (Doc. 5.) The parties were unable to resolve this case at a mediation held on April 17, 2014. Accordingly, the Court will withdraw this case from the Early Mediation Program and grant Plaintiff's in forma pauperis application. Most recently, Plaintiff has filed a motion for appointment of counsel. (Doc. 9.) The Court will order Defendants to answer the Complaint and deny Plaintiff's motion for appointment of counsel.

I. Application to Proceed In Forma Pauperis and Filing Fee

Plaintiff's Application to Proceed In Forma Pauperis will be granted. 28 U.S.C. § 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1). The Court will not assess an initial partial filing fee. Id. The statutory filing fee will be collected monthly in payments of 20% of the previous month's income credited to Plaintiff's trust account each time the amount in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate Order requiring the appropriate government agency to collect and forward the fees according to the statutory formula.

II. Statutory Screening of Prisoner Complaints

The Court is required to screen complaints brought by prisoners seeking relief against a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C. § 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised claims that are legally frivolous or malicious, that fail to state a claim upon which relief may be granted, or that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1), (2).

A pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2) (emphasis added). While Rule 8 does not demand detailed factual allegations, "it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). "Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

"[A] complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Determining whether a complaint states a plausible claim for relief [is]... a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id. at 679. Thus, although a plaintiff's specific factual allegations may be consistent with a constitutional claim, a court must assess whether there are other "more likely explanations" for a defendant's conduct. Id. at 681.

But as the United States Court of Appeals for the Ninth Circuit has instructed, courts must "continue to construe pro se filings liberally." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). A "complaint [filed by a pro se prisoner] must be held to less stringent standards than formal pleadings drafted by lawyers.'" Id. (quoting Erickson v. Pardus, 551 U.S. 89, 94 (2007) ( per curiam )).

III. Complaint

Plaintiff alleges one count for violation of his religious exercise rights.[1] Plaintiff sues the following current or former employees of the Arizona Department of Corrections (ADC): Director Charles Ryan; Pastoral Administrator Mike Linderman; and Florence Complex Senior Chaplain Allen Miser. Plaintiff seeks injunctive, compensatory, and punitive relief.

Except as otherwise indicated, Plaintiff alleges the following in his Complaint: Plaintiff is Muslim. As Pastoral Administrator, Linderman directly supervises chaplains at all institutions, makes recommendations to the division director considering department-wide religious issues, and provides directives concerning resolution of issues related to religious publications, diets, articles, apparel, practices, observances, and grooming. Defendant Miser reports to Linderman, supervises chaplains at the Florence Complex, attends wardens' meetings, creates and manages religious programs, and serves as a contact for religious activities.

Plaintiff alleges that he has been denied halal religious oils and has been restricted from growing a beard more than a ¼ inch long. According to Plaintiff, at least one other inmate has been permitted to grow a beard several inches long. Plaintiff contends that policies concerning halal religious oils and beard restrictions substantially burden his religious exercise and the policies are not the least restrictive means to further any legitimate, compelling penological interest. He also contends that the beard length policy has not been equally enforced as to similarly situated inmates and thereby violates his equal protection rights.[2]

In September 2010, Plaintiff sought leave from Miser to grow a beard more than ¼ inch long in accordance with his sincerely held belief in Islam. Miser denied Plaintiff's request as well as his request for a religious diet. Plaintiff submitted a grievance. On May 25, 2011, Director Ryan approved a religious diet and a shaving waiver. On June 16, 2011, Miser signed ...

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