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September 14, 2005.


The opinion of the court was delivered by: JAMES McCLURE, Senior District Judge



On February 18, 2004, plaintiff Kevin Bowman, a prisoner confined at SCI-Frackville, Frackville, Pennsylvania, filed suit under 42 U.S.C. § 1983 and the Religious Land Use and Institutionalized Persons Act, ("RLUIPA"), 42 U.S.C. § 2000cc-2(a), in the United States District Court for the Eastern District of Pennsylvania. On May 12, 2004, defendants filed a motion to dismiss or in the alternative to transfer venue. After the matter was fully briefed and a hearing was held, on September 23, 2004, the district court transferred the matter to the Middle District of Pennsylvania. At that time the court denied defendant's motion to dismiss based on venue, but stayed for our determination the substantive grounds of defendants' motion to dismiss. The matter has proceeded in an orderly pre-trial course before United States Magistrate Judge Malachy E. Mannion. No new dispositive motions have been filed since the initial original motion to dismiss; the court now addresses defendants' motion to dismiss plaintiff's claims on the grounds not addressed by the Eastern District Court.

  For the following reasons the court will partially grant defendants' motion.

I. Motion to Dismiss Standard
  When considering a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the court must view all allegations stated in the complaint as true and construe all inferences in the light most favorable to plaintiff. Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984); Kost v. Kozakiewicz, 1 F.3d 176, 183 (3d Cir. 1993). In ruling on a motion to dismiss the court primarily considers the allegations of the pleading, but is not required to consider legal conclusions alleged in the complaint. Kost, 1 F.3d at 183. At the motion to dismiss stage, the court considers whether plaintiff is entitled to offer evidence to support the allegations in the complaint. Maio v. Aetna, Inc., 221 F.3d 472, 482 (3d Cir. 2000). A complaint should be dismissed only if the court, from evaluating the allegations in the complaint, is certain that under any set of facts relief cannot be granted. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Morse v. Lower Merion School Dist., 132 F.3d 902, 906 (3d Cir. 1997); Markowitz v. Northeast Land, Co., 906 F.2d 100, 103 (3d Cir. 1994).

  The failure-to-state-a-claim standard of Rule 12(b)(6) "streamlines litigation by dispensing with needless discovery and factfinding." Neitzke v. Williams, 490 U.S. 319, 326-27 (1989). A court may dismiss a claim under Rule 12(b)(6) where there is a "dispositive issue of law." Id. at 326. If it is beyond a doubt that the non-moving party can prove no set of facts in support of its allegations, then a claim must be dismissed "without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one." Id. at 327.

  II. Plaintiff's Complaint

  Plaintiff is a prisoner currently detained at SCI-Frackville. The factual allegations that form the basis of his complaint against the Department of Corrections, however, occurred while he was detained at SCI-Mahoney and then at SCI-Somerset. Plaintiff contends that he was discriminated against by the staff of SCI-Mahoney and SCI-Somerset on the basis of his Muslim religion. The complaint makes several allegations involving conduct by defendants directed at both Bowman and other Muslim inmates. Plaintiff has asserted that defendants refused to allow plaintiff and other inmates of the Muslim faith to conduct services and classes which reflect their fundamental religious beliefs. Bowman asserts that he was mistakenly labeled an Islamic extremist, was accused of participating in an "unauthorized group activity", and was punished for other inmates' written requests to have classes in Aqeeda and Salat (faith and prayer), which were not being taught by the approved faith group leader for all Muslims at SCI-Mahoney. Defendants demanded that Bowman and other Muslims shave their beards to less than three inches, in violation of their Islamic beliefs. Defendants also allegedly demanded that Bowman and other Muslims roll down their pant legs, in violation of their Islamic beliefs.

  Bowman was allegedly punished by being placed in the restricted housing unit, being issued several misconducts for not shaving his beard less than three inches and for refusing to roll down his pant legs, both in violation of his Islamic beliefs, and then being transferred twice to different prisons. Then, at SCI-Somerset, the prison to which he was first transferred, Bowman remained in restricted housing.

  First, we note that this is not a class action. Bowman is the only named plaintiff, and the court will only entertain an active case or controversy as to grievances of the named plaintiff.

  The complaint asserts that defendants' conduct toward plaintiff and his fellow Muslims violated his constitutional rights, providing a cause of action under 42 U.S.C. § 1983 and RLUIPA, 42 U.S.C. § 2000cc-2(a). The complaint does not specifically identify what constitutional rights were allegedly violated by defendants, but we infer from the complaint that plaintiff is bringing a retaliation claim based on his First Amendment right to the free exercise of Islam and a Fourteenth Amendment due process claim based on his placement in restrictive housing.

  Plaintiff seeks declaratory relief pursuant to 28 U.S.C. §§ 2201 and 2202. Specifically, Bowman seeks:
1. Declaratory judgment for plaintiff declaring that the defendants' acts, policies and practices described herein and as expounded upon during the course of discovery in this action violate plaintiff's rights under the United States Constitution.
2. A preliminary and permanent injunction which:
a) Prohibits the defendants, their successors in office, agents and employees and all other persons in active concert and participation of them from harassing, threatening, punishing, or retaliating in any way against any plaintiff because he filed this action, or against any inmate because that inmate submitted an affidavit or otherwise testified in this case on behalf of plaintiff; b) Prohibits the defendants from transferring plaintiff to any other institution, without express consent, during the pendency of this action;
c) Requires the defendants to remove from the plaintiff's prison files and records any references to any events described herein or to the fact that plaintiff filed this suit;
d) Requires the defendants to allow plaintiff and other Muslim inmates to:
1) engage in any oral or written communication which is reasonably related to the conduct of this suit, including the preparation of affidavits on behalf of plaintiff;
2) to allow plaintiff to confer with his counsel and to prepare legal papers and do anything else, consistent in prison security, which is reasonably connected with the conduct of this suit.
3. Compensatory damages from the defendants, jointly and severally, to the plaintiff for the conduct complained of herein;
4. Punitive damages from the defendants, jointly and severally, to plaintiff;
5. A jury trial on all issues triable by jury.
6. Plaintiff's costs of this suit and his attorney's fees.
7. Such other and further relief as this Court deems just, proper and equitable.
III. Section 1983 and RLUIPA
  Plaintiff has brought a civil rights action under 42 U.S.C. § 1983 alleging violations of his constitutional rights by the defendants. Section 1983 provides:
Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State . . . subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . .
42 U.S.C. § 1983.

  In order for a plaintiff to prevail under 42 U.S.C. § 1983 he must establish two elements: 1) that the conduct complained of was committed by a person acting under color of state law; and 2) that the conduct deprived a person of rights, privileges, or immunities secured by the ...

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