Makin v. Department of Corrections, State of Colo.

45 F.3d 440 NOTICE: Although citation of unpublished opinions remains unfavored, unpublished opinions may now be cited if the opinion has persuasive value on a material issue, and a copy is attached to the citing document or, if cited in oral argument, copies are furnished to the Court and all parties. See General Order of November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or further order. Akeem Abdul MAKIN, Plaintiff-Appellant, v. DEPARTMENT OF CORRECTIONS, State of Colorado; Colorado Territorial Correctional Facility; Aristedes Zavaras, individually and in his official capacity; George E. Sullivan, individually and in his official capacity; H.B. Johnson, individually and in his official capacity; Colorado State Peniten-Tiary; Donice Neal, Defendants-Appellees. No. 94-1179. United States Court of Appeals, Tenth Circuit. Jan. 6, 1995. Before McWILLIAMS, BARRETT and LOGAN, Circuit Judges. ORDER AND JUDGMENT1 — 1 — After examining the briefs and appellate record, this panel has determined unanimously that oral argument would not materially assist the determination of this appeal. See Fed.R.App.P. 34(a); 10th Cir. R. 34.1.9. The case is therefore ordered submitted without oral argument. — 2 — Plaintiff Akeem Abdul Makin appeals the dismissal of his 42 U.S.C.1983 complaint against the Colorado Department of Corrections, two Colorado prison facilities, and three prison officials in their individual and official capacities. The complaint asserts that plaintiff was denied a kosher diet as required by his Islamic faith in violation of his right to free exercise of religion under the First, Eighth and Fourteenth Amendments. — 3 — Plaintiff's request for a special religious diet was denied because the institutional menus included alternative items that met his religious needs. The parties agree that kosher meats are not available in the prison menu. Plaintiff does not allege, however, that alternative menu items are nutritionally inadequate or violate the dietary restrictions of the Islamic faith. — 4 — The magistrate judge ordered the defendants to prepare a Martinez report. Martinez v. Aaron, 570 F.2d 317 (10th Cir.1978). Plaintiff filed a pleading in response to that report and sought to add additional defendants to the case. The magistrate judge ultimately filed a Report and Recommendation that the complaint be dismissed as frivolous under 28 U.S.C.1915(d). The district court agreed after reviewing de novo the allegations of the complaint. 28 U.S.C. 636(b)(1); Fed.R.Civ.P. 72. — 5 — We have reviewed the briefs and the record and are satisfied that the district court accurately summarized the facts and correctly applied the law. We cannot add significantly to the analysis in the magistrate judge's recommendation of February 14, 1994, as elaborated upon in the Apri 18, 1994 order of the district court, and therefore AFFIRM for substantially the reasons stated therein. — 6 — AFFIRMED. — 7 — The mandate shall issue forthwith. Footnotes [1] This order and judgment is not binding precedent, except under the doctrines of law of the case, res judicata, and collateral estoppel. The court generally disfavors the citation of orders and judgments; nevertheless, an order and judgment may be cited under the terms and conditions of the court's General Order filed November 29, 1993. 151 F.R.D. 470