Malik vs. Groom, (5th Cir. 1996)
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* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT
No. 95-40208 DAWUD MALIK, a/k/a Kenneth D. Collins, Plaintiff-Appellant, versus JERRY GROOM, Director of Chaplains, MARK PICKETT, JAMES A. SHAW, JR., Warden, JOHN STICE, Deputy Director, WAYNE SCOTT, Director, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, BERNIE L. BUSH, and THOMAS J. McKINNEY, Defendants-Appellees.
Appeal from the United States District Court For the Eastern District of Texas (6:94-CV-572) February 29, 1996 Before POLITZ, Chief Judge, DeMOSS and DENNIS, Circuit Judges.
PER CURIAM: * Dawud Malik, a/k/a Kenneth D. Collins, a black Muslim currently incarcerated in a Texas prison, alleges that prison officials canceled Muslim services, failed to provide a porkfree diet, prohibited the use of prayer caps and rugs outside of his cell, forced him to remain clean-shaven, and denied him receipt of religious materials mailed to the jail. Malik brought this 42 U.S.C. § 1983 action pro se and in forma pauperis seeking damages and equitable relief for violations of the first amendment and the Religious Freedom Restoration Act. 1 After conducting two Spears 2 hearings, the magistrate judge analyzed the legal merits of Malik§ 1915(d). The district court adopted that recommendation and entered a dismissal order. Malik timely appealed.
A petition in which in forma pauperis status is sought may be dismissed under section 1915(d) if the district court is satisfied that the action is frivolous or malicious. 3 On appeal we review that determination for an abuse of discretion. 4 In this instance we must conclude that the court abused its discretion. MalikÂ’s complaint alleges cognizable limitations which the state imposed on his religious expression.
These allegations, which are neither fanciful n o r delusional, state a tenable claim under section 1983. We cannot agree, as the court a` quo suggests, that Malik seeks relief only under an “indisputably meritless legal theory.” 5 The record contains the trial court’s thorough analysis of the legal merits. Expressing no opinion about the results of that analysis, we must note its prematurity. As the Supreme Court has made clear to us, dismissals under section 1915(d) are reserved for those claims which have no prospect of success, not those which merely fail as a matter of law. The latter instances are to be addressed under Rules 12(b)(6) and 56 of the Federal Rules of Civil Procedure, which assure applicable procedural protections. 6 We therefore VACATE the judgment of the district court and REMAND for further proceedings consistent herewith.
1 42 U.S.C.
6 Neitz ke at 329-330 (distinguishing between Rule 12(b)(6) and section 1915(d) dismissals)
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This document cites
- U.S. Court of Appeals for the Fifth Circuit - Alton R. Mackey, Plaintiff-Appellant, v. Rick Dickson, Et Al., Defendants-Appellees., 47 F.3d 744 (5th Cir. 1995)
- US Code - Title 42: The Public Health and Welfare - 42 USC 1983 - Sec. 1983. Civil action for deprivation of rights
- U.S. Supreme Court - Denton v. Hernandez, 504 U.S. 25 (1992)
- U.S. Supreme Court - Neitzke v. Williams, 490 U.S. 319 (1989)
- U.S. Court of Appeals for the Fifth Circuit - Cleveland Hicks, Jr., Plaintiff-Appellant, v. Jack M. Garner, Etc., Defendants-Appellees., 69 F.3d 22 (5th Cir. 1995)
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