United States District Court, W.D. Louisiana, Lake Charles Division
SHABBAR RAFIQ REG. # 54757177
UNITED STATES OF AMERICA
KATHLEEN KAY UNITED STATES MAGISTRATE JUDGE.
the court is a civil rights complaint [doc. 5] filed pursuant
to Bivens v. Six Unknown Named Agents, 91 S.Ct. 1999
(1971), by Shabbar Rafiq, who is proceeding pro se
and in forma pauperis in this matter. Rafiq is an
inmate in the custody of the Bureau of Prisons
(“BOP”) and is currently incarcerated at the
Federal Correctional Institute at Oakdale, Louisiana
complaint, Rafiq alleges that his First Amendment rights are
being violated at FCIO. Doc. 5. Namely, he claims (1) that he
and other Muslim inmates have less frequent access to clergy
and religious classes, (2) that the staff did not accommodate
Muslim inmates with a pre-fast meal during Ramadan but
provided a “premium meal” for Christian inmates
on their religious feast day, (3) that Muslim inmates are not
allowed to pray in congregation, and (4) that the staff
decorated the facility with “religious artifacts”
at Christmas, endorsing Christianity, but does not decorate
for other faiths. Id. at 5. He also complains of
conditions of confinement, alleging that the facilities are
unsanitary, the food is inedible, and inmates are treated in
an unprofessional manner and subject to verbal abuse.
Id. at 6. Finally, he alleges that his access to the
law library is curtailed. Id. He seeks a declaratory
judgment and nominal damages in relief, as well as whatever
relief the court deems just and proper. Id. at 4.
has been granted leave to proceed in forma pauperis
in this matter. Accordingly, his complaint is subject to
screening under 28 U.S.C. § 1915(e)(2), which provides
for sua sponte dismissal of the complaint or any
portion thereof if the court determines that it is frivolous
or malicious, fails to state a claim upon which relief may be
granted, or seeks monetary relief against a defendant who is
immune from such relief. 28 U.S.C. §
complaint is frivolous if it lacks an arguable basis in law
or fact. Gonzalez v. Wyatt, 157 F.3d 1016, 1019 (5th
Cir. 1998). A complaint fails to state a claim upon which
relief may be granted if it is clear the plaintiff cannot
prove any set of facts in support of his claim that would
entitle him to relief. Doe v. Dallas Indep. Sch.
Dist., 153 F.3d 211, 215 (5th Cir. 1998). When
determining whether a complaint is frivolous or fails to
state a claim upon which relief may be granted, the court
must accept the plaintiff's allegations as true.
Horton v. Cockrell, 70 F.3d 397, 400 (5th Cir. 1995)
(frivolity); Bradley v. Puckett, 157 F.3d at 1025
(failure to state a claim).
law provides a cause of action against any person who, under
the color of state law, acts to deprive another person of any
right, privilege, or immunity secured by the Constitution and
laws of the United States. 42 U.S.C. § 1983.
Accordingly, in order to state a claim under this statute, a
plaintiff must allege facts to show (1) that a constitutional
right has been violated and (2) that the conduct complained
of was committed by a person acting under color of state law;
that is, that the defendant was a state actor. West v.
Atkins, 108 S.Ct. 2250, 2254-55 (1988). A
Bivens action is the counterpart for those acting
under color of federal law of a suit brought under §
1983. E.g., Abate v. Southern Pacific Transp.
Co., 993 F.2d 107, 110 n. 14 (5th Cir. 1993); see
also Dean v. Gladney, 621 F.2d 1331, 1336 (5th Cir.
1980) (“The effect of Bivens was, in essence, to create
a remedy for federal officers, acting under color of federal
law, that was analogous to the section 1983 action against