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Keplinger v. United States

May 23, 2006


The opinion of the court was delivered by: Judge Jones



This pro se civil rights complaint ("Complaint") was initiated by James Alexander Keplinger ("Plaintiff" or "Keplinger"), an inmate presently confined at the Allenwood Federal Correctional Institution, in White Deer, Pennsylvania ("FCI-Allenwood"). The Complaint is accompanied by an application requesting leave to proceed in forma pauperis. For the reasons set forth below, Keplinger's action will be dismissed for failure to state a claim upon which relief may be granted under 28 U.S.C. § 1915.

Named as the sole Defendant is the United States of America. Plaintiff describes himself as being a non-Christian and notes that his present action is not related to his ongoing federal confinement. Keplinger states that the term "God" is contrary to his religious beliefs. His Complaint claims that the use of the word God in the Pledge of Allegiance ("Pledge"), on United States currency ("Motto") and in the song "America the Beautiful" is unconstitutional. He seeks injunctive relief, specifically, that the word God be removed from the Pledge, federal currency, and "America the Beautiful" and replaced with "the true name of Worship 'Yahweh'." Doc. 1, ¶ IV(3).


28 U.S.C. § 1915 imposes obligations on prisoners who file civil actions in federal court and wish to proceed in forma pauperis. § 1915(e)(2) provides:

(2) Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that (A) the allegation of poverty is untrue; or (B) the action or appeal (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.

Consequently, federal courts reviewing civil rights complaints filed by persons wishing to proceed in forma pauperis may determine that process should not be issued if the complaint fails to state a claim upon which relief may be granted. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). The test for failure to state a claim is whether, under any reasonable reading of the pleadings, plaintiff may be entitled to relief. Holder v. City of Allentown, 987 F.2d 188, 194 (3d Cir. 1993). Additionally, a court must "accept as true the factual allegations in the complaint and all reasonable inferences that can be drawn from them." Markowitz v. Northeast Land Co., 906 F.2d 100, 103 (3d Cir. 1990). Trial courts "are in the best position" to determine when an indigent litigant's complaint is appropriate for summary dismissal. Denton v. Hernandez, 504 U.S. 25, 33 (1992).

The factual averments set forth in the Complaint, namely that the word God appears in the Pledge, Motto, and "America the Beautiful" are true. It is well settled that the "government must avoid excessive interference with, or promotion of religion." VanOrden v. Perry, 125 S. Ct 2854, 2868 (2005)(Breyer, concurring). The First Amendment provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; ..." U.S. CONST. amend. I. Prisoners must be afforded "reasonable opportunities" to exercise their religious freedom guaranteed by the First Amendment. Cruz v. Beto, 405 U.S. 319, 322 n.2 (1972).

The United States Supreme Court in Lemon v. Kurtzman, 403 U.S. 602 (1971) set forth a three part analysis to be employed when reviewing claims brought pursuant to the Establishment Clause of the First Amendment. The initial inquiry is whether the challenged subject has a secular purpose. Second, the court must ask whether the subject has a principal or primary effect of advancing or inhibiting religion. Finally, a review of whether the challenged subject fosters government entanglement with religion must be undertaken.

In The Circle School v. Pappert, 381 F.3d 172 (3d Cir. 2004), the Court of Appeals for the Third Circuit addressed the constitutionality of a Pennsylvania state statute which required schools to provide for the recitation of the Pledge of Allegiance or national anthem each morning. The Court of Appeals noted that "most citizens of the United States willingly recite the Pledge of Allegiance." Id. at 183. However, the Court added that the minority of persons "who march to their own drummers" were entitled to protection under the Constitution, specifically, the First Amendment, and held that the statute requiring private schools to recite the Pledge or national anthem at the beginning of each school day was unconstitutional. Id.

As demonstrated by the above cases, government officials are constitutionally forbidden to compel or coerce individuals to recite the Pledge. However, in the present case there is no claim by Plaintiff that he was subjected to a compulsory recitation of the Pledge or "America the Beautiful". See Torcaso v. Watkins, 367 U.S. 488 (1961). Rather, Plaintiff's complaint generally asserts that the inclusion of the word God in the Pledge, Motto, and "America the Beautiful" is unconstitutional.

However, as relief, Keplinger's Complaint asks that the word God be replaced with Yahweh which he describes as being the "true name of worship." (Rec. Doc. 1, ¶ IV(3)). By acknowledging that the presence of a certain religious term as opposed to another in the Pledge, Motto and patriotic songs would be constitutionally acceptable, Plaintiff undermines his Complaint to the extent that he asserts that the challenged utilizations of the word God violate the Establishment Clause.

The Pledge of Allegiance ("Pledge") was initially conceived as part of the commemoration of the 400th anniversary of Christopher Columbus' discovery of America. See Elk Grove v. Newdow, 542 U.S. 1, 6 (2004). A 1942 joint resolution of Congress codified a set of rules and customs pertaining to the use of the flag. The codification set forth the language and proper recitation method of the Pledge. Congress amended the Pledge to include the phrase "under God" in 1954. See 68 Stat. 380. The House Report that accompanied the legislation observed that the Pledge ...

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