(PC) Lewis v. Welsh ( 2020 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TYRONE LEWIS, Case No. 1:19-cv-01468-EPG (PC) 12 Plaintiff, FINDINGS AND RECOMMENDATIONS, 13 v. RECOMMENDING THAT THIS ACTION PROCEED ON PLAINTIFF’S FIRST 14 WELSH, et al., AMENDMENT RETALIATION CLAIM AGAINST DEFENDANT WELSH AND 15 Defendants. THAT ALL OTHER CLAIMS AND 16 DEFENDANTS BE DISMISSED 17 (ECF NO. 19) 18 OBJECTIONS, IF ANY, DUE WITHIN TWENTY-ONE (21) DAYS 19 ORDER DIRECTING CLERK TO ASSIGN 20 DISTRICT JUDGE 21 22 Tyrone Lewis (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis in 23 this action filed on October 17, 2019. 24 On April 22, 2020, the Court screened Plaintiff’s complaint and found that it failed to 25 state any cognizable claims. (ECF No. 12). The Court gave Plaintiff thirty days to either: “a. 26 File a First Amended Complaint …; or b. Notify the Court in writing that he wants to stand on 27 his complaint….” (Id. at 12). The Court also provided Plaintiff with applicable legal 28 standards. 1 After being granted extensions of time, on July 6, 2020, Plaintiff filed his First 2 Amended Complaint (ECF No. 19). Plaintiff’s First Amended Complaint is now before this 3 Court for screening. For the reasons that follow, the Court will recommend that this action 4 proceed on Plaintiff’s First Amendment Retaliation claim against defendant Welsh and that all 5 other claims and defendants be dismissed for failure to state a claim upon which relief may be 6 granted. 7 Plaintiff has twenty-one days from the date of service of these findings and 8 recommendations to file his objections. 9 I. SCREENING REQUIREMENT 10 The Court is required to screen complaints brought by prisoners seeking relief against a 11 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 12 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 13 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 14 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 15 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 8), the Court may 16 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 17 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 18 determines that the action or appeal fails to state a claim upon which relief may be granted.” 19 28 U.S.C. § 1915(e)(2)(B)(ii). 20 A complaint is required to contain “a short and plain statement of the claim showing 21 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 22 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 23 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 24 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 25 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 26 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 27 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 28 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 1 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 2 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 3 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 4 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 5 pro se complaints should continue to be liberally construed after Iqbal). 6 II. SUMMARY OF PLAINTIFF’S FIRST AMENDED COMPLAINT 7 Plaintiff alleges as follows in his First Amended Complaint: 8 On October 26, 2018, Plaintiff was housed in C5-233 Level III at Tehachapi prison. At 9 some time near 1:30 p.m., defendant Correctional Officer Welsh announced over a loudspeaker 10 that it was dayroom time, and she began to unlock cell doors. Moments later, Plaintiff stepped 11 out of his cell into the dayroom with a Kufi on his head, which is Islamic religious headgear. 12 Defendant Welsh yelled out over the loudspeaker, “no headgear in the dayroom.” 13 Plaintiff then approached the podium near the tower and told defendant Welsh that he is 14 wearing religious headgear. Defendant Welsh then yelled at Plaintiff again and told him she 15 does not care, no headgear in the dayroom when she is on. 16 Plaintiff then asked defendant Welsh for a CDCR-602 appeal. Defendant Welsh then 17 motioned for Plaintiff to step outside so that she could talk to him. Once outside, defendant 18 Welsh gave Plaintiff a stern ultimatum on whether to file a 602 against her. She told Plaintiff, 19 “I’ll make your life a living hell in here, and I can make your property disappear.” Plaintiff 20 removed his Kufi and went inside the dayroom without further discussion. 21 On October 29, 2018, Plaintiff filed a 602 appeal on issues concerning him not being 22 able to wear his Kufi, which is part of his Islamic religious belief. The appeal bypassed the 23 first level, and on November 21, 2018, was partially granted at the second level by Lt. K. 24 Knowels. 25 After Plaintiff had his 602 appeal interview with Lt. Knowels, he returned to his 26 housing building and began to wear his Kufi without being told to remove it in the dayroom. 27 However, defendant Welsh had been off work for these few days. 28 On December 31, 2018, defendant Correctional Officer Garcia was working in the 1 tower of building 5. Defendant Garcia noticed that Plaintiff was wearing his Kufi on his head. 2 Defendant Garcia then motioned for Plaintiff to come within hearing distance of the tower. He 3 then told Plaintiff, “[t]ake that shit off in my dayroom.” Plaintiff told defendant Garcia that 4 Plaintiff was wearing religious headgear. Defendant Garcia then yelled, “I don[’]t care! Take 5 that shit off in my dayroom.” Plaintiff then removed his Kufi, feeling humiliated because he 6 cannot wear his religious headgear, and that defendant Garcia was abusing his discretional 7 power. 8 On December 31, 2018, Plaintiff filed another 602 appeal regarding issues of him not 9 being able to practice his Islamic beliefs harassment free. The appeal bypassed the first level. 10 Plaintiff was interviewed by Lt. Knowels on January 11, 2019. During the interview Lt. 11 Knowels asked Plaintiff, “why are you having these religious headgear problems with staff that 12 work building 5 tower?” Plaintiff stated, “I don[’]t have any idea, I did nothing wrong or had 13 any pass [sic] problems with officer Garcia.” At that time, Lt. Knowels concluded the 14 interview by granting Plaintiff’s 602 appeal and telling Plaintiff that he will talk to defendants 15 Garcia and Welsh. 16 On the next day, in the morning, Plaintiff was released from his cell for dayroom. 17 Plaintiff entered the dayroom wearing his Kufi. Defendant Welsh again yelled over the 18 loudspeaker, “[t]ake it off Lewis!” Plaintiff was confused due to the fact that his appeal was 19 just granted by Lt. Knowels. Plaintiff went to his cell to retrieve the granted 602 appeal and 20 attempted to show two floor officers that his appeal was granted. The officers told Plaintiff that 21 he needed to show defendant Welsh. 22 Plaintiff showed defendant Welsh his granted 602 appeal that states he can wear his 23 Kufi at any time. Once defendant Welsh read the granted appeal she said, “what the fuck!?” 24 Defendant Welsh’s statement was made more to herself than to Plaintiff. Defendant Welsh 25 handed Plaintiff back his 602 appeal without saying anything further. 26 Five to ten minutes later, defendant Welsh told Plaintiff over the loudspeaker to return 27 to his cell in order to pack his property, because he is going to building 2. At that time, when 28 Plaintiff was told he was moving because defendant Welsh would not allow him to wear his 1 Kufi and practice his religion, Plaintiff felt humiliated and harassed because defendant Welsh 2 saw that he had every right to practice his religion. 3 Plaintiff brings a First Amendment free exercise claim and a Fourteenth Amendment 4 equal protection claim against defendants Welsh and Garcia.1 5 III. ANALYSIS OF PLAINTIFF’S COMPLAINT 6 A. Section 1983 7 The Civil Rights Act under which this action was filed provides: 8 Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes 9 to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 10 secured by the Constitution and laws, shall be liable to the party injured in an 11 action at law, suit in equity, or other proper proceeding for redress.... 12 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 13 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 14 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 15 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 16 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 17 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 18 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 19 under color of state law, and (2) the defendant deprived him of rights secured by the 20 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 21 2006); see also Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 22 “under color of state law”). A person deprives another of a constitutional right, “within the 23 meaning of § 1983, ‘if he does an affirmative act, participates in another's affirmative act, or 24 omits to perform an act which he is legally required to do that causes the deprivation of which 25 complaint is made.’” Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th 26 Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal 27 28 1 Plaintiff alleges in his complaint that the Court has supplemental jurisdiction over his state law claims, but Plaintiff does not bring any state law claims. 1 connection may be established when an official sets in motion a ‘series of acts by others which 2 the actor knows or reasonably should know would cause others to inflict’ constitutional 3 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 4 causation “closely resembles the standard ‘foreseeability’ formulation of proximate 5 cause.” Arnold v. Int'l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper 6 v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 7 A plaintiff must demonstrate that each named defendant personally participated in the 8 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 9 connection or link between the actions of the defendants and the deprivation alleged to have 10 been suffered by the plaintiff. See Monell v. Dep't of Soc. Servs. of City of N.Y., 436 U.S. 658, 11 691, 695 (1978). 12 B. First Amendment Right to Free Exercise of Religion 13 “The First Amendment, applicable to state action by incorporation through the 14 Fourteenth Amendment, prohibits government from making a law prohibiting the free exercise 15 [of religion]. The Supreme Court has repeatedly held that prisoners retain the protections of the 16 First Amendment. A prisoner’s right to freely exercise his religion, however, is limited by 17 institutional objectives and by the loss of freedom concomitant with incarceration.” Hartmann 18 v. California Dep't of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (alteration in 19 original) (citations and internal quotation marks omitted). “‘To ensure that courts afford 20 appropriate deference to prison officials,’ the Supreme Court has directed that alleged 21 infringements of prisoners’ free exercise rights be ‘judged under a ‘reasonableness’ test less 22 restrictive than that ordinarily applied to alleged infringements of fundamental constitutional 23 rights.’” Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (quoting O’Lone v. Estate of 24 Shabazz, 482 U.S. 342, 349 (1987)). “The challenged conduct ‘is valid if it is reasonably 25 related to legitimate penological interests.’” Id. (quoting O’Lone, 482 U.S. at 349). 26 “To merit protection under the free exercise clause of the First Amendment, a religious 27 claim must satisfy two criteria. First, the claimant’s proffered belief must be sincerely held; the 28 First Amendment does not extend to so-called religions which ... are obviously shams and 1 absurdities and whose members are patently devoid of religious sincerity. Second, the claim 2 must be rooted in religious belief, not in purely secular philosophical concerns.” Malik v. 3 Brown, 16 F.3d 330, 333 (9th Cir. 1994) (alteration in original) (citations and internal quotation 4 marks omitted), supplemented, 65 F.3d 148 (9th Cir. 1995); see also Shakur v. Schriro, 514 5 F.3d 878, 884-85 (9th Cir. 2008) (noting the Supreme Court’s disapproval of the “centrality” 6 test and finding that the “sincerity” test in Malik determines whether the Free Exercise Clause 7 applies). 8 Additionally, “[a] person asserting a free exercise claim must show that the government 9 action in question substantially burdens the person’s practice of her religion.” Jones, 791 F.3d 10 at 1031. “A substantial burden ... place[s] more than an inconvenience on religious exercise; it 11 must have a tendency to coerce individuals into acting contrary to their religious beliefs or 12 exert substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. 13 at 1031-32 (alterations in original) (citation and internal quotation marks omitted) 14 Courts in the Ninth Circuit have routinely held that the denial of a religious practice on 15 a single isolated occasion does not constitute a “substantial burden” and thus does not violate 16 the First Amendment. See, e.g., Howard v. Skolnik, 372 F. App’x 781, 782 (9th Cir. 2010) 17 (summary judgment on free exercise claim was appropriate where the plaintiff’s allegation of 18 two incidents where prison staff interfered with his fasting did not amount to a substantial 19 burden); Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (“relatively short-term and 20 sporadic” interference with religious exercise was not a substantial burden); Pouncil v. 21 Sherman, 2018 WL 646105, at *3, 2018 U.S. Dist. LEXIS 15961, at *5-6 (E.D. Cal. Jan 31, 22 2018) (free exercise claim dismissed at screening because allegation of denial of meals for a 23 single night of Ramadan did not present a substantial burden); Murie v. Crossroads Corr. Ctr., 24 2017 WL 2265145, at *3, 2017 U.S. Dist. LEXIS 85863, at *4-6 (D. Mont. Feb. 24, 2017) (free 25 exercise claim dismissed at screening because allegation that the plaintiff was not allowed to 26 attend a sweat lodge on a single occasion did not present a substantial burden); Stidhem v. 27 Schwartz, 2017 WL 6887139, at *4, 2017 U.S. Dist. LEXIS 215007, at *9-10 (D. Or. Oct. 23, 28 2017) (summary judgment granted on the plaintiff’s free exercise claim because a less-than- 1 one-day suspension of the plaintiff’s kosher diet did not amount to a substantial burden). 2 Plaintiff alleges that on October 28, 2018, and on January 12, 2019, defendant Welsh 3 told Plaintiff to take his Kufi off while he was in the day room. Plaintiff also alleges that on 4 December 31, 2018, defendant Garcia told Plaintiff to take his Kufi off while he was in the 5 dayroom. Plaintiff alleges that Defendants violated his First Amendment free exercise rights 6 when they told him to remove his Kufi while he was in the dayroom. (ECF No. 19, p. 7). 7 Based on Plaintiff’s allegations, he was only prevented from wearing his Kufi while in 8 the dayroom, and only on three occasions over a period of over two months. Under the case 9 law discussed above, these short-term and sporadic denials were not a substantial burden on the 10 practice of Plaintiff’s religion. Accordingly, the Court finds Plaintiff has failed to state a claim 11 for a violation of the First Amendment’s free exercise clause. 12 C. Equal Protection Clause 13 The equal protection clause requires that persons who are similarly situated be treated 14 alike. City of Cleburne v. Cleburne Living Center, Inc., 473 U.S. 432, 439 (1985); Hartmann v. 15 California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013); Furnace v. Sullivan, 16 705 F.3d 1021, 1030 (9th Cir. 2013); Shakur v. Schriro, 514 F.3d 878, 891 (9th Cir. 2008). To 17 state a claim, a plaintiff must show that the defendants intentionally discriminated against him 18 based on his membership in a protected class, Hartmann, 707 F.3d at 1123 Furnace, 705 F.3d 19 at 1030, Serrano v. Francis, 345 F.3d 1071, 1082 (9th Cir. 2003), Thornton v. City of St. 20 Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005), Lee v. City of Los Angeles, 250 F.3d 668, 686 21 (9th Cir. 2001), or that similarly situated individuals were intentionally treated differently 22 without a rational relationship to a legitimate state purpose, Engquist v. Oregon Department of 23 Agr., 553 U.S. 591, 601-02 (2008), Village of Willowbrook v. Olech, 528 U.S. 562, 564 (2000), 24 Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008), North Pacifica LLC v. City of 25 Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 26 Plaintiff alleges that his equal protection rights were violated when Defendants 27 discriminated against him because of his Islamic beliefs. (ECF No. 19, p. 7). However, there 28 are no facts alleged in the complaint suggesting that either defendant discriminated against 1 Plaintiff because of his religious beliefs. For example, there are no allegations suggesting that 2 he was not able to participate in programming or other privileges based on his religious beliefs. 3 Additionally, he has not alleged that others were permitted to wear headgear in the dayroom. 4 In fact, Plaintiff alleges that defendant Welsh told him “no headgear in the dayroom.” 5 Accordingly, the Court finds that Plaintiff has failed to state an equal protection claim. 6 D. Retaliation 7 There are five basic elements to a First Amendment retaliation claim: “(1) An assertion 8 that a state actor took some adverse action against an inmate (2) because of (3) that prisoner's 9 protected conduct, and that such action (4) chilled the inmate's exercise of his First Amendment 10 rights, and (5) the action did not reasonably advance a legitimate correctional goal.” Rhodes v. 11 Robinson, 408 F.3d 559, 567-68 (9th Cir. 2005) (footnote omitted). 12 “[T]he mere threat of harm can be an adverse action, regardless of whether it is carried 13 out because the threat itself can have a chilling effect.” Brodheim v. Cry, 584 F.3d 1262, 1270 14 (9th Cir. 2009). 15 Plaintiff alleges that he asked defendant Welsh for a CDCR-602 appeal. Defendant 16 Welsh then motioned for Plaintiff to step outside so that she could talk to him. Once outside, 17 defendant Welsh gave Plaintiff a stern ultimatum on whether to file a 602 against her. She told 18 Plaintiff, “I’ll make your life a living hell in here, and I can make your property disappear.” 19 Plaintiff removed his Kufi and went inside the dayroom without further discussion. Based on 20 these allegations, the Court finds that Plaintiff’s First Amendment retaliation claim should 21 proceed past the screening stage.2 22 IV. RECOMMENDATIONS AND ORDER 23 The Court has screened the First Amended Complaint and finds that Plaintiff’s First 24 Amendment retaliation claim against defendant Welsh should proceed past the screening stage. 25 The Court also finds that all other claims and defendants should be dismissed for failure to state 26 27 2 Plaintiff did not list a First Amendment retaliation claim in the “Legal Claims” section of his complaint. However, construing Plaintiff’s complaint liberally, it appears that Plaintiff is attempting to bring a retaliation 28 claim against defendant Welsh. If Plaintiff is not attempting to bring a retaliation claim against defendant Welsh, he should state as such in his objections to these findings and recommendations. wOAOU 4:40 UV ETOUINMY INE SOMO ot PO MOI Ee POY AU VE 1 claim upon which relief may be granted. 2 The Court does not recommend granting further leave to amend. Plaintiff has alleged 3 || that he was only prevented from wearing his Kufi while in the dayroom, and only on three 4 || occasions over a period of over two months. This is insufficient to state a First Amendment 5 || free exercise claim. Additionally, there is no indication in the First Amended Complaint that 6 || Plaintiff was discriminated against because of religious beliefs. Finally, the Court already 7 || provided Plaintiff with an opportunity to amend his complaint with the benefit of relevant legal 8 || standards, and Plaintiff filed his First Amended Complaint with the guidance of those legal 9 || standards. Therefore, it appears that further leave to amend would be futile. 10 Accordingly, based on the foregoing, it is HEREBY RECOMMENDED that: 11 1. This case proceed on Plaintiff's First Amendment retaliation claim against 12 defendant Welsh; and 13 2. All other claims and defendants be dismissed for failure to state a claim upon which 14 relief may be granted. 15 These findings and recommendations will be submitted to the United States district 16 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 17 || twenty-one (21) days after being served with these findings and recommendations, Plaintiff 18 || may file written objections with the Court. The document should be captioned “Objections to 19 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 20 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 21 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 22 |} (9th Cir. 1991)). 23 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 24 || judge to this case. 5 IT IS SO ORDERED. 26 |! Dated: _ August 7, 2020 [Je hey 7 UNITED STATES MAGISTRATE JUDGE 28 10