(PC) J'Weial v. Barge ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 XAVIER LUMAR J’WEIAL, No. 2:17-cv-1937 MCE AC P 12 Plaintiff, 13 v. ORDER 14 COUNTY OF AMADOR, et al. 15 Defendants. 16 17 Plaintiff, a state prisoner proceeding pro se, seeks relief pursuant to 42 U.S.C. § 1983 and 18 has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. 19 I. Application to Proceed In Forma Pauperis 20 Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. 21 § 1915(a). ECF No. 2. Accordingly, the request to proceed in forma pauperis 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 this order, plaintiff will be assessed an initial partial filing fee in 24 accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct 25 the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and 26 forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments 27 of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account. 28 These payments will be forwarded by the appropriate agency to the Clerk of the Court each time 1 the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. 2 § 1915(b)(2). 3 II. Statutory Screening of Prisoner Complaints 4 The court is required to screen complaints brought by prisoners seeking relief against a 5 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 6 court must dismiss a complaint, or portion thereof, if the prisoner has raised claims that are 7 “frivolous, malicious, or fail[] to state a claim upon which relief may be granted,” or that “seek[] 8 monetary relief from a defendant who is immune from such relief.” 28 U.S.C. § 1915A(b). 9 A claim “is [legally] frivolous where it lacks an arguable basis either in law or in fact.” 10 Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th 11 Cir. 1984) (citations omitted). “[A] judge may dismiss . . . claims which are ‘based on 12 indisputably meritless legal theories’ or whose ‘factual contentions are clearly baseless.’” 13 Jackson v. Arizona, 885 F.2d 639, 640 (9th Cir. 1989) (quoting Neitzke, 490 U.S. at 327), 14 superseded by statute on other grounds as stated in Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 15 2000). The critical inquiry is whether a constitutional claim, however inartfully pleaded, has an 16 arguable legal and factual basis. Franklin, 745 F.2d at 1227-28 (citations omitted). 17 “Federal Rule of Civil Procedure 8(a)(2) requires only ‘a short and plain statement of the 18 claim showing that the pleader is entitled to relief,’ in order to ‘give the defendant fair notice of 19 what the . . . claim is and the grounds upon which it rests.’” Bell Atl. Corp. v. Twombly, 550 20 U.S. 544, 555 (2007) (alteration in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). 21 “Failure to state a claim under § 1915A incorporates the familiar standard applied in the context 22 of failure to state a claim under Federal Rule of Civil Procedure 12(b)(6).” Wilhelm v. Rotman, 23 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted). In order to survive dismissal for failure 24 to state a claim, a complaint must contain more than “a formulaic recitation of the elements of a 25 cause of action;” it must contain factual allegations sufficient “to raise a right to relief above the 26 speculative level.” Twombly, 550 U.S. at 555 (citations omitted). “‘[T]he pleading must contain 27 something more . . . than . . . a statement of facts that merely creates a suspicion [of] a legally 28 cognizable right of action.’” Id. (alteration in original) (quoting 5 Charles Alan Wright & Arthur 1 R. Miller, Federal Practice and Procedure § 1216 (3d ed. 2004)). 2 “[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to 3 relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting 4 Twombly, 550 U.S. at 570). “A claim has facial plausibility when the plaintiff pleads factual 5 content that allows the court to draw the reasonable inference that the defendant is liable for the 6 misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). In reviewing a complaint under this 7 standard, the court must accept as true the allegations of the complaint in question, Hosp. Bldg. 8 Co. v. Trs. of the Rex Hosp., 425 U.S. 738, 740 (1976) (citation omitted), as well as construe the 9 pleading in the light most favorable to the plaintiff and resolve all doubts in the plaintiff’s favor, 10 Jenkins v. McKeithen, 395 U.S. 411, 421 (1969) (citations omitted). 11 III. Complaint 12 The complaint alleges that defendants Amador County, K. Borgi (kitchen supervisor), 13 R.C. Lindsey (kitchen supervisor), Joe Lizarraga (warden), Imam Mohamad, and I. Rivera 14 (S.C.C.1) violated plaintiff’s rights under the First and Eighth Amendments. ECF No. 1 at 2-6. 15 Specifically, plaintiff states that his faith is Messianic Judaism, and that from April 10 through 16 April 18, 2017, he was intentionally singled out and denied religious meals for the Passover 17 holiday even though other participants in the same religious program received religious meals 18 during this period. Id. at 4, 6. As a result, plaintiff alleges that he did not eat for multiple days, 19 which caused him pain and other physical and emotional symptoms. Id. at 4, 6. In a separate 20 claim, plaintiff asserts that he filed an administrative grievance on an unspecified matter, and 21 because of this, defendants Mohamad, Borgi, Rivera, and Lindsey retaliated against him by 22 denying him religious meals. Id. at 5. 23 IV. Failure to State a Claim 24 A. County of Amador 25 Although the complaint names the County of Amador as a defendant, it does not state a 26 basis for naming the county as a party to this action given that plaintiff was a state prisoner in 27 1 The meaning of the acronym “S.C.C.” is not set forth in the complaint, but it appears to refer to 28 “Supervising Correctional Cook.” See ECF No. 8 at 10. 1 state custody at the time of the events in question. Because plaintiff has not described how the 2 county is responsible for his conditions of confinement in a state prison, his claims against the 3 county fail. 4 B. Personal Involvement 5 A person can only be held liable under § 1983 for his or her own conduct. “A plaintiff 6 must allege facts . . . that show that an individual was personally involved in the deprivation of 7 his civil rights. Liability under § 1983 must be based on the personal involvement of the 8 defendant.” Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998) (citing May v. Enomoto, 9 633 F.2d 164, 167 (9th Cir. 1980)). This is true even for supervisors, because “[t]here is no 10 respondeat superior liability under section 1983.” Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 11 1989) (citation omitted). 12 Under Section 1983, supervisory officials are not liable for actions of subordinates on any theory of vicarious liability. A supervisor 13 may be liable only if (1) he or she is personally involved in the 14 constitutional deprivation, or (2) there is a sufficient causal connection between the supervisor’s wrongful conduct and the 15 constitutional violation. 16 Crowley v. Bannister, 734 F.3d 967, 977 (9th Cir. 2013) (internal citations and quotation marks 17 omitted). Thus, “[a]lthough there is no pure respondeat superior liability under § 1983, a 18 supervisor is liable for the acts of his subordinates ‘if the supervisor participated in or directed the 19 violations, or knew of the violations [of subordinates] and failed to act to prevent them.’” 20 Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1182 (9th Cir. 2007) (quoting 21 Taylor, 880 F.2d at 1045). Additionally, “[s]upervisory liability exists even without overt 22 personal participation in the offensive act if supervisory officials implement a policy so deficient 23 that the policy itself is a repudiation of constitutional rights and is the moving force of the 24 constitutional violation.” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal quotation 25 marks omitted) (quoting Thompkins v. Belt, 828 F.2d 298, 304 (5th Cir. 1987)). 26 Here, plaintiff has not stated facts sufficient to show that defendants were personally 27 involved in the meal deprivations alleged in his complaint. His free exercise of religion claim 28 fails because, though plaintiff states that Lizarraga, Mohamad, Borgi, Rivera, and Lindsey 1 intentionally denied him religious meals, he does not explain what each of these individuals 2 personally did (e.g., personally refusing to distribute religious meals to plaintiff, or directing 3 others to not distribute religious meals to him). ECF No. 1 at 4. Instead, he alleges generally that 4 defendants all have a “policy, custom and usage of not allowing inmates freedom to exercise their 5 respective religion.” Id. This suggests that plaintiff is alleging liability based on defendants’ 6 supervisory capacities rather than their personal involvement in the denial of meals. 7 Plaintiff’s claim for deliberate indifference fails for similar reasons. While plaintiff states 8 that the County of Amador, Lizarraga, Mohamad, Borgi, Rivera, and Lindsey are to blame for the 9 denial of religious meals, he does not explain if or how these defendants knew about the number 10 of meals that he missed or how they were involved in the denials. Id. at 6. This is important 11 because if the same person denied plaintiff his religious meals every day for the eight-day 12 holiday, that may show deliberate indifference, but if a different person denied his meals each 13 day, absent some knowledge of the other denials, that suggests an insufficiently culpable state of 14 mind. Plaintiff also reiterates that defendants had “a custom, policy and usage of not providing 15 inmates with their religious meals,” once again suggesting that defendants’ involvement is based 16 upon their supervisory positions, and he does not explain whether or to whom he reported being 17 denied meals. Id. at 5-6. As a result, it is unknown whether defendants knew that he was not 18 receiving meals during the holiday. Accordingly, the complaint does not provide facts sufficient 19 to support that defendants disregarded an excessive risk to plaintiff’s health or safety. 20 To the extent that it appears that plaintiff is alleging liability against defendants based on a 21 policy, he has not stated facts sufficient to show that they created or implemented a policy that 22 violated his rights. Although plaintiff alleges that there is a “policy” of not allowing inmates 23 freedom to practice their religion, he also states that CDCR Rules and Regulations provide for the 24 “approval as well as the resources to participate in” Passover and that he was the only one 25 purposely singled out to not receive religious meals. Id. at 4. The assertion that he alone was 26 denied religious meals suggests that there was not a policy of denying religious practice, and the 27 information provided does not show that there was a constitutionally deficient policy in place. 28 Finally, plaintiff asserts that Mohamad, Borgi, Rivera, and Lindsey retaliated against him 1 for filing a grievance, in violation of the First Amendment.2 Id. at 5. However, he once again 2 fails to specify what these individuals personally knew or did. The complaint does not state 3 when plaintiff filed the grievance or how defendants learned about it, and it is unclear whether 4 the retaliatory denial was the denial of Passover meals or a separate denial of religious meals.3 5 Nor does plaintiff explain how defendants denied him religious meals (e.g. personally refused to 6 give him meals, ordered other staff to stop giving plaintiff meals, etc.). Because the complaint 7 does not allege sufficient facts, plaintiff fails to state a claim for retaliation. 8 V. Leave to Amend 9 If plaintiff chooses to file a first amended complaint, he must demonstrate how the 10 conditions about which he complains resulted in a deprivation of his constitutional rights. Rizzo 11 v. Goode, 423 U.S. 362, 370-71 (1976). Also, the complaint must allege in specific terms how 12 each named defendant is involved. Arnold v. Int’l Bus. Machs. Corp., 637 F.2d 1350, 1355 (9th 13 Cir. 1981). There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link 14 or connection between a defendant’s actions and the claimed deprivation. Id.; Johnson v. Duffy, 15 588 F.2d 740, 743 (9th Cir. 1978). Furthermore, “[v]ague and conclusory allegations of official 16 participation in civil rights violations are not sufficient.” Ivey v. Bd. of Regents, 673 F.2d 266, 17 268 (9th Cir. 1982) (citations omitted). 18 Plaintiff is also informed that the court cannot refer to a prior pleading in order to make 19 his first amended complaint complete. Local Rule 220 requires that an amended complaint be 20 complete in itself without reference to any prior pleading. This is because, as a general rule, an 21 amended complaint supersedes the original complaint. Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 22 1967) (citations omitted), overruled in part by Lacey v. Maricopa County, 693 F.3d 896, 928 (9th 23 Cir. 2012) (claims dismissed with prejudice and without leave to amend do not have to be re-pled 24 in subsequent amended complaint to preserve appeal). Once plaintiff files a first amended 25 26 2 Although plaintiff cites the Eighth and Fourteenth Amendments in his retaliation claim, he does not make any allegations that would implicate either amendment. ECF No. 1 at 5. 27 3 To the extent plaintiff may be attempting to state a claim against defendants because they denied a grievance about religious meals, there are no facts to show that defendants were on 28 notice of the denial of the meals at a time when they could have intervened. 1 complaint, the original complaint no longer serves any function in the case. Therefore, in an 2 amended complaint, as in an original complaint, each claim and the involvement of each 3 defendant must be sufficiently alleged. 4 In the event plaintiff chooses to amend the complaint, he should keep the following 5 standards in mind. To state a claim for violation of his religious freedom under the First 6 Amendment, plaintiff must show that each defendant burdened the practice of his religion by 7 preventing him from engaging in a sincerely held religious belief, and that the defendant did so 8 without any justification reasonably related to legitimate penological interests. Shakur v. Schriro, 9 514 F.3d 878, 884-85 (9th Cir. 2008). 10 A retaliation claim must include: 11 (1) An assertion that a state actor took some adverse action against an inmate (2) because of (3) that prisoner’s protected conduct, and 12 that such action (4) chilled the inmate’s exercise of his First Amendment rights, and (5) the action did not reasonably advance a 13 legitimate correctional goal. 14 Rhodes v. Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote and citations omitted). 15 Plaintiff must allege enough facts to show that each defendant’s action was taken because of his 16 protected conduct. 17 Finally, “a prison official violates the Eighth Amendment only when two requirements are 18 met. First, the deprivation alleged must be, objectively, sufficiently serious; a prison official’s act 19 or omission must result in the denial of the minimal civilized measure of life’s necessities.” 20 Farmer v. Brennan, 511 U.S. 825, 834 (1994) (internal quotation marks and citations omitted). 21 Second, the prison official must subjectively have a sufficiently culpable state of mind, “one of 22 deliberate indifference to inmate health or safety.” Id. (internal quotation marks and citations 23 omitted). The official is not liable under the Eighth Amendment unless he “knows of and 24 disregards an excessive risk to inmate health or safety.” Id. at 837. Then he must fail to take 25 reasonable measures to lessen the substantial risk of serious harm. Id. at 847. Negligent failure 26 to protect an inmate from harm is not actionable under § 1983. Id. at 835. 27 VI. Plain Language Summary of this Order for a Pro Se Litigant 28 Your request to proceed in forma pauperis is granted and you are not required to pay the 1 entire filing fee immediately. 2 The complaint is being “screened out” and will not be served because the facts you have 3 alleged are not enough to state a claim for relief. Rather than recommending dismissal, the 4 undersigned is giving you a chance to file an amended complaint. To state a claim, you must 5 explain how each person that you name as a defendant was involved in violating your rights. 6 That is, you should provide more details about what each defendant did to violate your rights. 7 Explain how they denied your religious meals (e.g, in person, by telling someone else not to give 8 you your meal, etc.) and why you believe the denials were in retaliation for you filing a grievance 9 (e.g., they knew about the grievance and denied your meal shortly after you filed it, they said 10 something to you that made you think they were retaliating, etc). 11 If you choose to amend your complaint, the first amended complaint must include all of 12 the claims you want to make because the court will not look at the claims or information in the 13 original complaint. Any claims or information not in the first amended complaint will not be 14 considered. 15 In accordance with the above, IT IS HEREBY ORDERED that: 16 1. Plaintiff’s request for leave to proceed in forma pauperis, ECF No. 2, is granted. 17 2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff 18 is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. 19 § 1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the 20 Director of the California Department of Corrections and Rehabilitation filed concurrently 21 herewith. 22 3. Plaintiff’s complaint is not appropriate for service and is subject to dismissal in its 23 present form, but plaintiff is granted leave to amend. 24 4. Within thirty days from the date of service of this order, plaintiff may file an amended 25 complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil 26 Procedure, and the Local Rules of Practice. The amended complaint must bear the docket 27 number assigned this case and must be labeled “First Amended Complaint.” Plaintiff must file an 28 original and two copies of the amended complaint. Failure to file an amended complaint in 1 || accordance with this order will result in dismissal of this action. 2 5. The Clerk of the Court is directed to send plaintiff a copy of the prisoner complaint 3 || form used in this district. 4 | DATED: March 30, 2020 ~ 5 Hthren— Llane ALLISON CLAIRE 6 UNITED STATES MAGISTRATE JUDGE 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28