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Lewis Kruger, Individually and On Behalf of All v. Dennis Kaemingk

May 30, 2012

LEWIS KRUGER, INDIVIDUALLY AND ON BEHALF OF ALL OTHERS SIMILARLY SITUATED, PLAINTIFF,
v.
DENNIS KAEMINGK, IN BOTH HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS THE SECRETARY OF CORRECTIONS FOR SOUTH DAKOTA; AND DOUGLAS L. WEBER, IN BOTH HIS INDIVIDUAL AND OFFICIAL CAPACITIES AS BOTH THE CHIEF WARDEN AND THE DIRECTOR OF PRISON OPERATIONS FOR SOUTH DAKOTA; DEFENDANTS.



The opinion of the court was delivered by: Karen E. Schreier Chief Judge

ORDER GRANTING LEAVE TO PROCEED IN FORMA PAUPERIS

Plaintiff, Lewis Kruger, filed a pro se civil rights lawsuit pursuant to 42 U.S.C. §§ 1983 and 2000cc against defendants. Kruger asserts that defendants have substantially burdened his right to the free exercise of his religion in violation of the First and Fourteenth Amendments and the Religious Land Use and Institutionalized Persons Act (RLUIPA). Kruger is incarcerated at the South Dakota State Penitentiary in Sioux Falls, South Dakota. Kruger moves for leave to proceed in forma pauperis.

The Prison Litigation Reform Act (PLRA), 28 U.S.C. § 1915, requires prisoners to make an initial partial filing payment where possible, even if in forma pauperis status is sought. "When an inmate seeks in forma pauperis status, the only issue is whether the inmate pays the entire fee at the initiation of the proceedings or over a period of time under an installment plan." Henderson v. Norris, 129 F.3d 481, 483 (8th Cir. 1997) (internal citations omitted). Determination of the partial filing fee is calculated according to 28 U.S.C. § 1915(b)(1), which requires a payment of 20 percent of the greater of:

(A) the average monthly deposits to the prisoner's account; or

(B) the average monthly balance in the prisoner's account for the 6-month period immediately preceding the filing of the complaint or notice of appeal.

Kruger has indicated the average of the monthly deposits to his account is $68.17 and the average monthly balance of his account is $141.60. Kruger must make an initial partial filing fee of $28.32, which is 20 percent of $141.60. Accordingly, Kruger is granted in forma pauperis status.

But the inquiry does not end there. The PLRA also requires this court to "screen" Kruger's complaint to determine whether it should be dismissed. Section 1915 provides an action must be dismissed if the court determines the claim "(i) is 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."

STANDARD OF REVIEW

The court must assume as true all facts well pleaded in the complaint. Estate of Rosenberg by Rosenberg v. Crandell, 56 F.3d 35, 37 (8th Cir. 1995).

Also, "although liberally construed, a pro se complaint must contain specific facts supporting its conclusions." Allen v. Purkett, 5 F.3d 1151, 1153 (8th Cir. 1993) (citations omitted). A plaintiff's complaint "does not need detailed factual allegations . . . [but] requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). If it does not contain these bare essentials, dismissal is appropriate. Beavers v. Lockhart, 755 F.2d 657, 663 (8th Cir. 1985). Twombly requires that a complaint's factual allegations must be "enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true." Id. at 1965; Abdullah v. Minnesota, 261 Fed. App'x 926, 927 (8th Cir. 2008) (citing Twombly and noting complaint must contain either direct or inferential allegations regarding all material elements necessary to sustain recovery under some viable legal theory).

It has long been recognized that "civil rights pleadings should be construed liberally." Frey v. City of Herculaneum, 44 F.3d 667, 671 (8th Cir. 1995). The complaint, however, must at the very least contain facts that state a claim as a matter of law and must not be conclusory. Id. Broad and conclusory statements unsupported by factual allegations are not sufficient. Ellingburg v. King, 490 F.2d 1270 (8th Cir. 1974). Finally, although pro se complaints are to be construed liberally, "they must still allege facts sufficient to support the claims advanced." Stone v. Harry, 364 F.3d 912, 914 (8th Cir. 2004). The court is not required to supply additional facts for a pro se plaintiff, nor construct a legal theory that assumes facts which have not been pleaded. Id. To state a claim for relief under § 1983, a plaintiff must allege sufficient facts to show (1) that the defendants acted under color of state law, and (2) that the alleged wrongful conduct deprived the plaintiff of a constitutionally protected federal right." Zutz v. Nelson, 601 F.3d 842, 848 (8th Cir. 2010) (internal citations omitted).

DISCUSSION

Kruger asserts that he has been a practitioner of Messianic Judaism for the past several years. Docket 1 at ¶ 10. According to Kruger, "Messianic Judaism is a form of belief that, while incorporating elements from both Christianity and Judaism, is a fully separate and divergent form of worship." Id. at ¶ 11. Messianic Jews "claim Jesus as the Messiah of Israel and Savior of the world, and call him by his original Hebrew name, Yeshua." Id.*fn1 Messianic Jews "consider all 66 books of the Bible, from Genesis to Revelation, as the Inspired Word from God, to be believed and practiced." Id. Messianic Jews observe the religious celebrations set forth in "Leviticus 23 and 25, plus a few more, plus what [they] find in the New Testament regarding Yeshua." Id.

Kruger asserts that prison officials have substantially burdened the exercise of his religion by refusing his requests for "a place and time to conduct Messianic Jewish worship services." Id. at ¶ 16. According to Kruger, when his request was initially denied, no reason was given. Id. After Kruger proceeded through the first step of the prison grievance process, he was told that "he needed an [sic] SDDOC trained outside volunteer to act as a spiritual advisor." Id. at ¶ 17. Kruger asserts that this response is "prejudicial" because "there are several other religious groups that do not require outside volunteers -- namely the Jewish, Wiccan, and Assatru groups[.]" Id. at ¶ 18. At the final stage of the grievance process, Kruger's ...


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