Muslim v. Carmichael

Decision Date14 November 2017
Docket Number3:16-cv-433-FDW
PartiesSHAHID HASSAN MUSLIM, Plaintiff, v. ERWIN CARMICHAEL, ET AL., Defendants.
CourtU.S. District Court — Western District of North Carolina

THIS MATTER is before the Court on initial review of Plaintiff's Complaint, (Doc. No. 1), and his incorporated motion for change of venue, (Doc. No. 1 at 12). Plaintiff is proceeding in forma pauperis. See (Doc. No. 4).


Pro se Plaintiff Shahid Muslim has filed a civil rights suit pursuant to 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act ("RLUIPA"), 42 U.S.C. § 2000cc, et seq., against Mecklenburg County Sheriff Irwin Carmichael and Mecklenburg County Central Jail Chaplains Dennis and Maddox.

Construing the Compliant liberally and accepting the allegations as true, Plaintiff was deprived of a Kosher or Halal diet to accommodate his sincerely held religious beliefs even though there was no legitimate penological reason for doing so. This substantially burdened Plaintiff's practice of his religion, which he believes to require the consumption of Halal meat. The Kosher diet satisfies his religious requirements and could be modified to accommodate his medical need for a high-protein diet. He was told, and documents indicate, that he was denied the Kosher diet because he is not Jewish. Providing Kosher meals to Plaintiff could be accomplished for de minimis cost and would not cause any administrative or security problems. The only alternative offered to Plaintiff is a vegetarian diet that does not satisfy his religion's requirement to eat meat or his medical need for a high-protein diet which would result in rapid weight loss. Plaintiff was treated "harshly" by the chaplain who ignored and denied his requests. (Doc. No. 1 at 7). Plaintiff appears to allege that the unavailability of a Kosher diet caused him to go on a hunger strike. Plaintiff alleges that documents showing the reason for his denial - the fact that he is not Jewish - are being altered to remove that invalid reason for his denial.

Plaintiff brought to "facility officials'" attention that a similarly situated Jewish inmate in Plaintiff's housing unit was allowed the Kosher diet but the officials callously denied and ignored Plaintiff. (Doc. No. 1 at 3-4). The requirement that inmates must profess to follow the Jewish faith to receive Kosher meals has since been removed from the system.

Muslim inmates are also treated differently from members of other religious groups in that they are provided inadequate services of an Imam. The facility maintains a relationship with only one part-time Imam whereas there are four or five full-time Christian chaplains. The part-time Imam is rarely available to minister to Muslim inmates. During Plaintiff's 30 days at the facility, he only encountered the Imam on three occasions. The facility allows "Jumah" or Friday congregational prayer service for three or more inmates, but the unavailability of the Imam to lead the service makes this alternative means a farce. In Plaintiff's 31 months at the facility, an Imam led one Jumah prayer even though the requisite number of inmates was present on every occasion.

Plaintiff appears to seek compensatory and punitive damages, and injunctive relief.

(1) Motion to Change Venue

Plaintiff appears to incorporate in his Complaint a motion to change venue. Plaintiffexplains that he filed a federal civil rights action against Judge Robert Conrad, the Western District of North Carolina Clerk of Courts, and court reporter, and that he has been assaulted by two United States Marshals at the federal courthouse. (Doc. No. 1 at 12).

Under 28 U.S.C. § 1404(a), "[f]or the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented." The threshold question when addressing a motion to transfer venue is whether the proposed transferee court is one in which the action originally may have been brought. Comm'l Equip. Co., Inc. v. Barclay Furniture Co., 738 F.Supp. 974 (W.D.N.C. June 18, 1990). If so, the subsequent decision to transfer venue is within the discretion of the court. Global Touch Solutions, LLC v. Toshiba Corp., 109 F.Supp.3d 882 (E.D. Va. 2015). District courts within this circuit consider four factors when deciding whether to transfer venue: (1) the weight accorded to plaintiff's choice of venue; (2) witness convenience and access; (3) convenience of the parties; and (4) the interest of justice. Trustees of the Plumbers & Pipefitters Nat. Pension Fund v. Plumbing Servs., Inc., 791 F.3d 436, 444 (4th Cir. 2015). As a general rule, a plaintiff's "choice of venue is entitled to substantial weight in determining whether transfer is appropriate." Id. (quoting Bd. of Trs. v. Sullivant Ave. Props., LLC, 508 F.Supp.2d 473, 477 (E.D.Va. 2007)).

In the instant case, Plaintiff chose to file the action in this Court. He fails to identify another Court where this action could have been brought. See 28 U.S.C. § 1391(b). The events allegedly occurred at the Mecklenburg County Jail, and all three Defendants are employed in Mecklenburg County. Plaintiff does not allege that the Defendants reside in a district other than the Western District of North Carolina where Mecklenburg County is located. Therefore, he has failed to meet the threshold showing that there is a proposed alternate venue where the suit could have beenbrought. Nor does Plaintiff explain why the four relevant considerations favor a transfer. Assuming that he means to argue that the interests of justice favor a transfer, this claim is too vague and conclusory to support relief. He fails to explain why his federal civil rights suit against a different judge, the clerk of court, and a court reporter prevents this Court from considering his case fairly. His allegations that U.S. Marshals mistreated him is too vague and conclusory to demonstrate that the interests of justice warrant a transfer.

Plaintiff has not demonstrated the threshold showing that this suit could have been filed in another court, or the existence of factors supporting a transfer. Therefore the motion for change of venue incorporated in Plaintiff's Complaint is denied.


Because Plaintiff is a prisoner proceeding in forma pauperis, the Court must review the Complaint to determine whether it is subject to dismissal on the grounds that it is "(i) frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from such relief." 28 U.S.C. § 1915(e)(2)(B). In its frivolity review, a court must determine whether the Complaint raises an indisputably meritless legal theory or is founded upon clearly baseless factual contentions, such as fantastic or delusional scenarios. Neitzke v. Williams, 490 U.S. 319, 327-28 (1989). A complaint should not be dismissed for failure to state a claim "unless 'after accepting all well-pleaded allegations in the plaintiff's complaint as true and drawing all reasonable factual inferences from those facts in the plaintiff's favor, it appears certain that the plaintiff cannot prove any set of facts in support of his claim entitling him to relief.'" Veney v. Wyche, 293 F.3d 726, 730 (4th Cir. 2002) (quoting Edwards v. City of Goldsboro, 178 F.3d 231, 244 (4th Cir. 1999)).

A pro se complaint must be construed liberally. Haines v. Kerner, 404 U.S. 519, 520(1972) (a pro se complaint, however inartfully pled, must be held to less stringent standards than formal pleadings drafted by lawyers); see also Smith v. Smith, 589 F.3d 736, 738 (4th Cir. 2009) ("Liberal construction of the pleadings is particularly appropriate where ... there is a pro se complaint raising civil rights issues."). However, the liberal construction requirement will not permit a district court to ignore a clear failure to allege facts in his complaint which set forth a claim that is cognizable under federal law. Weller v. Dep't of Soc. Servs., 901 F.2d 387 (4th Cir. 1990). A pro se complaint must still contain sufficient facts "to raise a right to relief above the speculative level" and "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007); see Ashcroft v. Iqbal, 556 U.S. 662 (2009) (the Twombly plausibility standard applies to all federal civil complaints including those filed under § 1983). This "plausibility standard requires a plaintiff to demonstrate more than a sheer possibility that a defendant has acted unlawfully." Francis v. Giacomelli, 588 F.3d 186, 193 (4th Cir. 2009) (internal quotation marks omitted). A plaintiff must articulate facts that, when accepted as true, demonstrate he has stated a claim entitling him to relief. Id.


(1) First Amendment Free Exercise of Religion

The First Amendment states that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech...." U.S. Const. Amend I. The First Amendment applies to the states through the Fourteenth Amendment. See Everson v. Bd. of Educ., 330 U.S. 1, 15 (1947). A prison inmate retains those First Amendment rights that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system. See Turner v. Safley, 482 U.S. 78, 89-91 (1987); Pittman v. Hutto, 594 F.2d 407, 410 (4th Cir. 1979). When a prison restriction infringes upon an inmate'sFirst Amendment rights, the alleged infringement "must be evaluated in the light of the central objective of prison administration, safeguarding institutional security." Bell v. Wolfish, 441 U.S. 520, 547 (1979) (citing Jones v. North Carolina Prisoners' Labor Union, 433 U.S. 119, 129 (1977)).

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