United States District Court, W.D. Arkansas, Fayetteville Division
OPINION AND ORDER
TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE
a civil rights case filed by the Plaintiff, Jody
Niederberger, under the provisions of 42 U.S.C. § 1983.
Plaintiff proceeds pro se and has filed an
application to proceed in forma pauperis
("IFP")(Doc. 2). He is currently incarcerated in
the Benton County Detention Center ("BCDC").
Prison Litigation Reform Act ("PLRA") modified the
IFP statute, 28 U.S.C. § 1915, to require the Court to
screen complaints for dismissal under § 1915(e)(2)(B).
The Court must dismiss a complaint, or any portion of it, if
it contains claims that: (a) are frivolous or malicious; (b)
fail to state a claim upon which relief may be granted; or,
(c) seek monetary relief from a defendant who is immune from
such relief. 28 U.S.C. § 1915(e)(2)(B).
to the allegations of the Complaint (Doc. 1), Plaintiff
contends he is not being provided Kosher meals in keeping
with his religion. He believes he is being discriminated
against by the Defendants because of his dietary practices.
alleges that the trays he receives contain no seasoning while
the regular trays contain seasoning. He alleges that
initially he received peanut butter at every meal, but now it
has been removed to dissuade others from attempting to
receive Kosher meals.
alleges that on two occasions, CBM Food Management Services
("CBM") served him cross-contaminated food.
Specifically, on July 13, 2017, and one other occasion, his
food contained a chunk of ham or bologna allegedly caused by
the kitchen "not following practices/protocol[s] to
prevent this." On July 13, 2017, he had eaten about half
of his meal when he noticed there was a chunk of ham or
bologna in it. He showed the deputies and Deputy Lawson
returned the meal to the kitchen and came back with another
tray. Plaintiff does not state what occurred on the other
occasion when he alleges there was cross-contamination.
Plaintiff alleges he was retaliated against by CBM on
multiple occasions for using the grievance procedure. After
he began using the grievance procedure "towards the
kitchen staff, " Plaintiff alleges the quantity of food
he received diminished substantially. Plaintiff indicates he
even returned one tray to the kitchen via Deputy Cruz, but
the kitchen refused to "fix it." Finally, Plaintiff
maintains the grievance procedure is inadequate. Plaintiff
alleges he filed numerous grievances addressed to the
kitchen, Lieutenant Holt, Captain Guyll, and even the jail
administrator, but Lieutenant Holt was the only employee who
responded to any grievances. Plaintiff also states he
received very few responses, and usually the response was
just "forwarded to kitchen" or "will let
kitchen know." He indicates there was no opportunity to
appeal the decisions made and no attempt to resolve the
the PLRA, the Court is obligated to screen a case prior to
service of process being issued. A claim is frivolous when it
"lacks an arguable basis either in law or fact."
Neitzke v. Williams, 490 U.S. 319, 325 (1989). A
claim fails to state a claim upon which relief may be granted
if it does not allege "enough facts to state a claim to
relief that is plausible on its face." Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007). The Court
bears in mind, however, that when "evaluating whether a
pro se plaintiff has asserted sufficient facts to
state a claim, we hold 'a pro se complaint,
however inartfully pleaded, ... to less stringent standards
than formal pleadings drafted by lawyers.'"
Jackson v. Nixon, 747 F.3d 537, 541 (8th Cir. 2014)
(quoting Erickson v. Pardus, 551 U.S. 89, 94
are entitled to reasonable accommodation of their religious
dietary needs." Love v. Reed, 216 F.3d 682, 689
(8th Cir. 2000). Specifically, it has been held that inmates
are entitled to a diet sufficient to sustain health and
satisfy religious dictates. See McElyea v. Babbitt,
833 F.2d 196, 198 (9th Cir. 1987). However, in order to
present a valid First Amendment claim in this context,
Plaintiff has the "burden of establishing that the
alleged religious belief or ritual in question [a Kosher
diet] is based on a teaching of the religion [Jewish], that
[Plaintiff's] belief in the teaching is sincerely held,
and that the governmental action in question actually
infringe[d] upon [his] free exercise of this belief."
Goffv. Graves, 362 F.3d 543, 547 (8th Cir. 2004). It
is without doubt that the desire to keep Kosher is rooted in
the Jewish faith. Love, 216 F.3d at 688.
claims based on the lack of seasoning and lack of peanut
butter are subject to dismissal. These claims are based on
Plaintiffs preference for the way the food tastes or a
preference for one type of food, rather than a claim that the
diet provided him did not meet the dictates of his faith.
See e.g., Vinning-EI v. Evans, 657 F.3d
591, 594 (7th Cir. 2011) ("A prison is entitled to
ensure that a given claim reflects a sincere religious
belief, rather than a preference for the way a given diet
tastes, a belief that the preferred diet is less painful to
animals, or a prisoner's desire to make a pest of himself
and cause trouble for his captors"); McCray v.
Holmes, No. 12-2356, 2012 WL 5247684, *2 (D.N.J. Oct.
23, 2012) ("[A] prisoner is not constitutionally
entitled to a kosher... or any other form of religious diet
simply because the prisoner prefers the taste, the packaging
or any other properties of that fare").
Plaintiff claims that CBM served him food that was
cross-contaminated on two occasions and retaliated against
him for filing grievances by reducing his food portions. In
Monell v. Department of Social Services, 436 U.S.
658 (1978), the Court held that a municipality could not be
held liable simply because it employed a tortfeasor.
Id. at 691. In other words, a respondeat
superior theory of liability could not apply to impose
liability upon a municipality. Id. Instead, the
liability of the municipality was dependent on the existence
of an official policy or custom. Szabla v. Brooklyn Park,
Minn., 486 F.3d 385, 389 (8th Cir. 2007)(citations
"a corporation acting under color of state law will only
be held liable under § 1983 for its own unconstitutional
policies. The proper test is whether there is a policy,
custom or action by those who represent official policy that
inflicts injury actionable under § 1983."
Sanders v. Sears, Roebuck & Co.,984 F.2d 972,
975-76 (8th Cir. 1993)(citation omitted). Because Plaintiff
has not alleged that CBM had a policy ...