(PC) Davis v. Petersen ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 JIM DALE DAVIS, No. 2:19-cv-2130 CKD P 12 Plaintiff, 13 v. ORDER 14 KIM PETERSEN, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding pro se and seeking relief pursuant to 42 U.S.C. § 18 1983. This proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 19 636(b)(1). 20 Plaintiff requests leave to proceed in forma pauperis. As plaintiff has submitted a 21 declaration that makes the showing required by 28 U.S.C. § 1915(a), his request will be granted. 22 Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§ 23 1914(a), 1915(b)(1). By separate order, the court will direct the appropriate agency to collect the 24 initial partial filing fee from plaintiff’s trust account and forward it to the Clerk of the Court. 25 Thereafter, plaintiff will be obligated for monthly payments of twenty percent of the preceding 26 month’s income credited to plaintiff’s prison trust account. These payments will be forwarded by 27 the appropriate agency to the Clerk of the Court each time the amount in plaintiff’s account 28 exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. § 1915(b)(2). 1 The court is required to screen complaints brought by prisoners seeking relief against a 2 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 3 court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 4 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 5 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 6 When considering whether a complaint states a claim upon which relief can be granted, the court 7 must accept the allegations as true, Erickson v. Pardus, 551 U.S. 89, 93-94 (2007), and construe 8 the complaint in the light most favorable to the plaintiff, see Scheuer v. Rhodes, 416 U.S. 232, 9 236 (1974). 10 In his complaint, plaintiff asserts that he is a Muslim and that he was denied Islamic 11 services on three occasions. The court finds that the allegations in the complaint fail to state a 12 claim upon which relief can be granted because plaintiff has not alleged sufficient injury under 13 the First Amendment or the Religious Land Use and Institutionalized Persons Act (RLUIPA). 14 Accordingly, the complaint will be dismissed. Plaintiff will, however, be granted an opportunity 15 to state a claim upon which relief can be granted in an amended complaint. 16 If plaintiff chooses to amend the complaint, plaintiff must demonstrate how the conditions 17 complained of have resulted in a deprivation of plaintiff’s federal rights. See Ellis v. Cassidy, 18 625 F.2d 227 (9th Cir. 1980). Also, in his amended complaint, plaintiff must allege in specific 19 terms how each named defendant is involved. There can be no liability under 42 U.S.C. § 1983 20 unless there is some affirmative link or connection between a defendant’s actions and the claimed 21 deprivation. Rizzo v. Goode, 423 U.S. 362 (1976). Furthermore, vague and conclusory 22 allegations of official participation in civil rights violations are not sufficient. Ivey v. Board of 23 Regents, 673 F.2d 266, 268 (9th Cir. 1982). 24 In order to state a claim premised upon the denial of the exercise of religion, the burden 25 placed on the inmate's religious exercise by the defendants' actions must be substantial. 26 Hernandez v. Comm'r, 490 U.S. 680, 699 (1989). De minimis (minor) burdens on the exercise of 27 ///// 28 ///// 1 | religion are not actionable. See, e.g., Rapier v. Harris, 172 F.3d 999, 1006 n.4 (7th Cir. 1999) 2 | (the unavailability of a non-pork meal 3 meals out of 810 is de minimis). 3 Finally, plaintiff is informed that the court cannot refer to a prior pleading in order to 4 | make plaintiff's amended complaint complete. Local Rule 220 requires that an amended 5 | complaint be complete in itself without reference to any prior pleading. This is because, as a 6 | general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375 7 | F.2d 55, 57 (th Cir. 1967). Once plaintiff files an amended complaint, the original pleading no 8 || longer serves any function in the case. Therefore, in an amended complaint, as in an original 9 | complaint, each claim and the involvement of each defendant must be sufficiently alleged. 10 In accordance with the above, IT IS HEREBY ORDERED that: 11 1. Plaintiffs request for leave to proceed in forma pauperis (ECF No. 2) is granted. 12 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. All fees 13 | shall be collected and paid in accordance with this court’s order to the Director of the California 14 | Department of Corrections and Rehabilitation filed concurrently herewith. 15 3. Plaintiff's complaint is dismissed. 16 4. Plaintiff is granted thirty days from the date of service of this order to file an amended 17 | complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 18 | Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 19 | number assigned this case and must be labeled “Amended Complaint.” Failure to file an 20 || amended complaint in accordance with this order will result in a recommendation that this action 21 | be dismissed. 22 | Dated: March 16, 2020 dp. A. fe 28 CAROLYN K. DELANEY 24 UNITED STATES MAGISTRATE JUDGE 25 26 27 | 4 28 davi2130.14