So holds Rivers v. Mohr (N.D. Ohio Apr. 5, 2012, just posted on Westlaw today):
Plaintiff alleges that Muslim inmates sued the ODRC seeking accommodation of their religious dietary restrictions. He contends Gary Mohr issued a statement on May 1, 2011 indicating the ODRC settled this lawsuit, and as part of the settlement, agreed to eliminate pork from all meals served to Ohio prison inmates. Plaintiff asserts that this part of the agreement violates the Establishment Clause of the First Amendment, subjects him to cruel and unusual punishment in violation of the Eighth Amendment, denies him substantive and procedural due process, and denies him Equal Protection…
[T]here is no objectively reasonable indication that the ODRC’s decision to eliminate pork from prison diets was to establish the religion of Islam. While the removal of pork from prison meals may benefit Muslim as well as Jewish inmates, it also creates a meal that can be eaten by all inmates regardless of faith, and eliminates the need to provide specialized meals for each religious group. Plaintiff has not alleged facts to support his suggestion that the ODRC made its decision for the primary purpose of promoting the practice of Islam….
[Nor would] a reasonable person … conclude that the menu change endorsed the Muslim faith. The choice is neutral to religion. Several faiths prohibit the consumption of pork. The ODRC’s decision merely makes accommodating a multitude of religious practices and beliefs easier and more economical for the prison….
[And] the ODRC’s decision has very little entanglement with a particular religion. Although some inmates may find it easier to eat observe dietary restrictions, the ODRC has not become involved in the actual practice of a religion, nor is there any indication that it intends to take on a more active role in religious observances….
The Eighth Amendment affords protection against conditions of confinement which constitute health threats, but not those which cause mere discomfort or inconvenience…. Removing one food item from the menu does not result in a threat to Plaintiff’s health nor does it rise to the level of deprivation of essential food. Pork is not one of the necessities of life. Inmates cannot expect the amenities, conveniences and services of a good hotel or five star restaurant. There is no Eighth Amendment right to be served food according to taste preferences….
Plaintiff has not alleged any facts or cited any law which suggest he has a constitutionally protected interest in eating pork as part of his prison diet. At best, it would be a de minimis interest that is not protected by the Fourteenth Amendment [Due Process Clause]. Absent a protected interest in this privilege, the Court need not decide what process must be given to Plaintiff before deprivation may occur….
Plaintiff’s substantive due process claim is based on conduct alleged to be so severe that it shocks the conscience. Where a specific Amendment provides an explicit source of constitutional protection against a particular sort of governmental conduct, “that Amendment, not the more generalized notion of ‘substantive due process,’ must be the guide for analyzing these claims.” Plaintiff asserted a substantially similar claim under the Eighth Amendment, which was already considered by this Court. His substantive due process claim is dismissed as duplicative of his Eighth Amendment claim….
[As to the Equal Protection Clause], Plaintiff has not alleged disparate treatment. To the contrary, Plaintiff objects to being treated the same as all other inmates. He does not allege he was denied pork while all other inmates were served this dish. Instead, he complains that all inmates are treated the same, regardless of whether they have a religious dietary restriction of this nature. Without a showing of different treatment, Plaintiff fails to state a claim for denial of equal protection.