United States District Court, E.D. Wisconsin
William C. Griesbach, Chief United States District Judge.
Calvin Pirtle, who is currently serving a state prison
sentence at Green Bay Correctional Institution (GBCI) and
representing himself, filed a complaint under 42 U.S.C.
§ 1983, alleging that his civil rights were violated.
This matter comes before the court on Plaintiff's motion
for leave to proceed without prepaying the full filing fee
and to screen the complaint.
to Proceed without Prepayment of the Filing Fee
has requested leave to proceed without prepayment of the full
filing fee (in forma pauperis). A prisoner plaintiff
proceeding in forma pauperis is required to pay the
full amount of the $350.00 filing fee over time. See
28 U.S.C. § 1915(b)(1). Plaintiff has filed a certified
copy of his prison trust account statement for the six-month
period immediately preceding the filing of his complaint, as
required under 28 U.S.C. § 1915(a)(2), and has been
assessed and paid an initial partial filing fee of $6.06.
Accordingly, Plaintiff's motion for leave to proceed
without prepayment of the filing fee is granted.
of the Complaint
court is required to screen complaints brought by prisoners
seeking relief against a governmental entity or officer or
employee of a governmental entity. 28 U.S.C. § 1915A(a).
The court must dismiss a complaint or portion thereof if the
prisoner 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). A claim is legally frivolous when it lacks an
arguable basis either in law or in fact. Denton v.
Hernandez, 504 U.S. 25, 31 (1992); Neitzke v.
Williams, 490 U.S. 319, 325 (1989); Hutchinson ex
rel. Baker v. Spink, 126 F.3d 895, 900 (7th Cir. 1997).
state a cognizable claim under the federal notice pleading
system, Plaintiff is required to provide a “short and
plain statement of the claim showing that [he] is entitled to
relief.” Fed.R.Civ.P. 8(a)(2). The complaint must
contain sufficient factual matter “that is plausible on
its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). The court accepts the factual
allegations as true and liberally construes them in the
plaintiff's favor. Turley v. Rednour, 729 F.3d
645, 651 (7th Cir. 2013). Nevertheless, the complaint's
allegations “must be enough to raise a right to relief
above the speculative level.” Twombly, 550
U.S. at 555 (citation omitted).
of the Complaint
is a Muslim and, in accordance with his religious beliefs,
cannot consume any pork products. Plaintiff claims Dave
Brooks, GBCI's food service manager, got approval to
serve pork for certain meals from Warden S. Schueler after
the dietician stated the menu otherwise met all nutritional
requirements if an inmate decided not to eat the pork.
Plaintiff filed an inmate complaint, but the complaint was
dismissed by DeGroot, reasoning that the menu did not violate
the code. Plaintiff appealed, and Corrections Complaint
Examiner Emily Davidson concurred with DeGroot's
decision. Secretary of Office Cindy O'Donnell affirmed
Plaintiff's complaint. O'Donnell noted that the
Department of Corrections Pork Policy required that
“when pork is served on the noon or evening menus, a
hearty soup, peanut butter, cheese or other protein item
will” also be on the menu and found that GBCI did not
provide these alternatives. Dkt. No. 1 at 4. Plaintiff does
not allege that he received a meal containing pork while this
meal plan was in place.
13, 2019, Plaintiff received his breakfast bag and began
eating his cereal. Plaintiff soon realized that the cereal
contained gelatin, stopped eating the cereal, and reported
his concerns to staff. The next day, Plaintiff told Sergeant
Kent that his cereal contained gelatin. Sergeant Kent called
the kitchen, and Dave Brooks, GBCI's food service
manager, advised that the gelatin does not contain pork and
that the inmates will only get the food contained in the
breakfast bag. Plaintiff wrote an inmate complaint about
being served products that contain pork. The complaint was
dismissed because Markee stated that the cereal did not
alleges that Brooks and Schueler's failure to comply with
the Department of Corrections' Pork Policy violated his
First Amendment rights. He seeks compensatory and punitive
damages. The Free Exercise Clause of the First Amendment
forbids prison officials from imposing a substantial burden
on the free exercise of religion, unless the burden is
reasonably related to a legitimate penological interest.
See Kaufman v. Pugh, 733 F.3d 692, 696 (7th Cir.
2013). Although prisoners enjoy a right to exercise their
religion under the First Amendment, that right is
“subject to limits appropriate to the nature of prison
life.” Vinning-El v. Evans, 657 F.3d 591,
592-93 (7th Cir. 2011). “A prison policy of either
actually or constructively denying a pork-free diet to Muslim
inmates violates their First Amendment rights.”
Johnson-Bey v. Indiana Dep't of Corrs., 668
F.Supp.2d 1122, 1128 (N.D. Ind. 2009) (citing Hunafa v.
Murphy, 907 F.2d 46 (7th Cir. 1990)).
case, Plaintiff claims that Brooks and Schueler implemented a
menu that did not comply with the Department of
Corrections' Pork Policy. But the complaint does not
contain any allegations that Plaintiff received a meal that
contained pork while the menu was in place. Plaintiff also
claims that, on one occasion, he received a breakfast bag
that contained gelatin even though GBCI's policy required
that staff provide Muslim inmates with a diet that comports
with their religion. See Dkt. No. 1 at 4 (noting
that the Department of Corrections Pork Policy requires that,
“when pork is served on the noon or evening menus, a
hearty soup, peanut butter, cheese or other protein item will
be also menued”). A single instance of being fed pork
does not violate an inmate's First Amendment right to
freedom of religion. “While being provided with diet
trays containing pork for one meal . . . may have annoyed and
inconvenienced [Plaintiff], this isolated negligent
act” cannot support a claim that Plaintiff was denied
his First Amendment right to freedom of religion.
Johnson-Bey, 668 F.Supp.2d at 1129
(“Negligence generally states no claim upon which
relief can be granted in a section 1983 action.”);
see also Johnson v. Varano, No. 714 C.D. 2010, 2011
WL 10843816, at *6 (Pa. Commw. Ct. Mar. 9, 2011) (“[A]
single incident of being inadvertently served pork does not
deprive a Muslim of the right to the free exercise of his
faith.”). Accordingly, Plaintiff has failed to state a
First Amendment claim against Brooks and Schueler.
has also asserted claims against Markee, DeGroot, and
Davidson for denying his grievances. A complaint examiner
shows deliberate indifference when he refuses to do his job
or “routinely sends grievances to the shredder without
reading them.” Burks v. Rasmisch, 555 F.3d
592, 595-96 (7th Cir. 2009). A complaint examiner is not
liable under § 1983 for merely recommending that an
inmate complaint be dismissed. See Id. In other
words, recommending the denial of a complaint does not amount
to deliberate indifference absent other malicious acts. Even
if Plaintiff disagrees with the outcome of his grievances, he
has not alleged that the complaint examiners acted
maliciously in denying his grievances. Accordingly, Markee,