(PC) Walker v. Howard ( 2021 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 EASTERN DISTRICT OF CALIFORNIA 8 9 MARQUISE WALKER, Case No. 1:20-cv-01575-EPG (PC) 10 Plaintiff, FINDINGS AND RECOMMENDATIONS, 11 RECOMMENDING THAT THIS ACTION v. BE DISMISSED, WITH PREJUDICE, FOR 12 FAILURE TO STATE A CLAIM, HOWARD, FAILURE TO PROSECUTE, AND 13 FAILURE TO COMPLY WITH A COURT Defendant. ORDER 14 (ECF NOS. 1 & 9) 15 OBJECTIONS, IF ANY, DUE WITHIN 16 FOURTEEN DAYS 17 ORDER DIRECTING CLERK TO ASSIGN DISTRICT JUDGE 18 19 I. BACKGROUND 20 Marquise Walker (“Plaintiff”) is a state prisoner proceeding pro se and in forma 21 pauperis in this civil rights action filed pursuant to 42 U.S.C. § 1983. 22 Plaintiff filed the complaint commencing this action on November 3, 2020. (ECF No. 23 1). On November 20, 2020, the Court screened Plaintiff’s complaint and found that it failed to 24 state any cognizable claims. (ECF No. 9). The Court gave Plaintiff thirty days from the date 25 of service of the order to file an amended complaint or to notify the Court that he wants to 26 stand on his complaint. (Id. at 7). The Court warned Plaintiff that “[f]ailure to comply with 27 this order may result in the dismissal of this action.” (Id. at 8). 28 The thirty-day deadline has passed, and Plaintiff has not filed an amended complaint or 1 otherwise responded to the Court’s order. Accordingly, for the reasons described below, the 2 Court will recommend that Plaintiff’s case be dismissed for failure to state a claim. The Court 3 will also recommend that Plaintiff’s case be dismissed for failure to comply with a court order 4 and failure to prosecute. 5 II. SCREENING REQUIREMENT 6 The Court is required to screen complaints brought by prisoners seeking relief against a 7 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). 8 The Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are 9 legally “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or 10 that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C. 11 § 1915A(b)(1), (2). As Plaintiff is proceeding in forma pauperis (ECF No. 8), the Court may 12 also screen the complaint under 28 U.S.C. § 1915. “Notwithstanding any filing fee, or any 13 portion thereof, that may have been paid, the court shall dismiss the case at any time if the court 14 determines that the action or appeal fails to state a claim upon which relief may be granted.” 15 28 U.S.C. § 1915(e)(2)(B)(ii). 16 A complaint is required to contain “a short and plain statement of the claim showing 17 that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are 18 not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 19 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 20 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). A plaintiff must set forth “sufficient 21 factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Id. 22 (quoting Twombly, 550 U.S. at 570). The mere possibility of misconduct falls short of meeting 23 this plausibility standard. Id. at 679. While a plaintiff’s allegations are taken as true, courts 24 “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 25 677, 681 (9th Cir. 2009) (citation and internal quotation marks omitted). Additionally, a 26 plaintiff’s legal conclusions are not accepted as true. Iqbal, 556 U.S. at 678. 27 Pleadings of pro se plaintiffs “must be held to less stringent standards than formal 28 pleadings drafted by lawyers.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (holding that 1 pro se complaints should continue to be liberally construed after Iqbal). 2 III. SUMMARY OF PLAINTIFF’S COMPLAINT 3 Plaintiff alleges as follows in his complaint: 4 On May 7, 2019, Plaintiff wrote a CDCR-22 request form to defendant Muslim 5 Chaplain Howard, asking to be placed on the list for “FRIDAY JUMMA PRAYER SERVICES 6 AND RAMADAN,” but was denied the right to practice his religion. Plaintiff requested to be 7 placed on the list for religious services and Ramadan well ahead of the time limit required by 8 defendant Howard, yet was denied the right to participate in the prescribed ritual of his Islamic 9 religion by defendant Howard. 10 IV. ANALYSIS OF PLAINTIFF’S COMPLAINT 11 A. Section 1983 12 The Civil Rights Act under which this action was filed provides: 13 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 14 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 15 secured by the Constitution and laws, shall be liable to the party injured in an 16 action at law, suit in equity, or other proper proceeding for redress.... 17 42 U.S.C. § 1983. “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely 18 provides ‘a method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 19 490 U.S. 386, 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see 20 also Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los 21 Angeles, 697 F.3d 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 22 2012); Anderson v. Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). 23 To state a claim under section 1983, a plaintiff must allege that (1) the defendant acted 24 under color of state law, and (2) the defendant deprived him of rights secured by the 25 Constitution or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 26 2006); see also Marsh v. County of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing 27 “under color of state law”). A person deprives another of a constitutional right, “within the 28 meaning of § 1983, ‘if he does an affirmative act, participates in another’s affirmative act, or 1 omits to perform an act which he is legally required to do that causes the deprivation of which 2 complaint is made.’” Preschooler II v. Clark County Sch. Bd. of Trs., 479 F.3d 1175, 1183 3 (9th Cir. 2007) (quoting Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite 4 causal connection may be established when an official sets in motion a ‘series of acts by others 5 which the actor knows or reasonably should know would cause others to inflict’ constitutional 6 harms.” Preschooler II, 479 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of 7 causation “closely resembles the standard ‘foreseeability’ formulation of proximate cause.” 8 Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City 9 of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008). 10 A plaintiff must demonstrate that each named defendant personally participated in the 11 deprivation of his rights. Iqbal, 556 U.S. at 676-77. In other words, there must be an actual 12 connection or link between the actions of the defendants and the deprivation alleged to have 13 been suffered by the plaintiff. See Monell v. Dep’t of Soc. Servs. of City of N.Y., 436 U.S. 14 658, 691, 695 (1978). 15 B. First Amendment Right to Free Exercise of Religion 16 “The First Amendment, applicable to state action by incorporation through the 17 Fourteenth Amendment, prohibits government from making a law prohibiting the free exercise 18 [of religion]. The Supreme Court has repeatedly held that prisoners retain the protections of the 19 First Amendment. A prisoner’s right to freely exercise his religion, however, is limited by 20 institutional objectives and by the loss of freedom concomitant with incarceration.” Hartmann 21 v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1122 (9th Cir. 2013) (alteration in 22 original) (citations and internal quotation marks omitted). “‘To ensure that courts afford 23 appropriate deference to prison officials,’ the Supreme Court has directed that alleged 24 infringements of prisoners’ free exercise rights be ‘judged under a ‘reasonableness’ test less 25 restrictive than that ordinarily applied to alleged infringements of fundamental constitutional 26 rights.’” Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (quoting O’Lone v. Estate of 27 Shabazz, 482 U.S. 342, 349 (1987)). “The challenged conduct ‘is valid if it is reasonably 28 related to legitimate penological interests.’” Id. (quoting O’Lone, 482 U.S. at 349). 1 “To merit protection under the free exercise clause of the First Amendment, a religious 2 claim must satisfy two criteria. First, the claimant’s proffered belief must be sincerely held; the 3 First Amendment does not extend to so-called religions which ... are obviously shams and 4 absurdities and whose members are patently devoid of religious sincerity. Second, the claim 5 must be rooted in religious belief, not in purely secular philosophical concerns.” Malik v. 6 Brown, 16 F.3d 330, 333 (9th Cir. 1994) (alteration in original) (citations and internal quotation 7 marks omitted), supplemented, 65 F.3d 148 (9th Cir. 1995); see also Shakur v. Schriro, 514 8 F.3d 878, 884-85 (9th Cir. 2008) (noting the Supreme Court’s disapproval of the “centrality” 9 test and finding that the “sincerity” test in Malik determines whether the Free Exercise Clause 10 applies). 11 Additionally, “[a] person asserting a free exercise claim must show that the government 12 action in question substantially burdens the person’s practice of her religion.” Jones, 791 F.3d 13 at 1031. “A substantial burden ... place[s] more than an inconvenience on religious exercise; it 14 must have a tendency to coerce individuals into acting contrary to their religious beliefs or 15 exert substantial pressure on an adherent to modify his behavior and to violate his beliefs.” Id. 16 at 1031-32 (alterations in original) (citation and internal quotation marks omitted) 17 Courts in the Ninth Circuit have routinely held that the denial of a religious practice on 18 a single isolated occasion does not constitute a “substantial burden” and thus does not violate 19 the First Amendment. See, e.g., Howard v. Skolnik, 372 F. App’x 781, 782 (9th Cir. 2010) 20 (summary judgment on free exercise claim was appropriate where the plaintiff’s allegation of 21 two incidents where prison staff interfered with his fasting did not amount to a substantial 22 burden); Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998) (“relatively short-term and 23 sporadic” interference with religious exercise was not a substantial burden); Pouncil v. 24 Sherman, 2018 WL 646105, at *3, 2018 U.S. Dist. LEXIS 15961, at *5-6 (E.D. Cal. Jan 31, 25 2018) (free exercise claim dismissed at screening because allegation of denial of meals for a 26 single night of Ramadan did not present a substantial burden); Murie v. Crossroads Corr. Ctr., 27 2017 WL 2265145, at *3, 2017 U.S. Dist. LEXIS 85863, at *4-6 (D. Mont. Feb. 24, 2017) (free 28 exercise claim dismissed at screening because allegation that the plaintiff was not allowed to 1 attend a sweat lodge on a single occasion did not present a substantial burden); Stidhem v. 2 Schwartz, 2017 WL 6887139, at *4, 2017 U.S. Dist. LEXIS 215007, at *9-10 (D. Or. Oct. 23, 3 2017) (summary judgment granted on the plaintiff’s free exercise claim because a less-than- 4 one-day suspension of the plaintiff’s kosher diet did not amount to a substantial burden). 5 Plaintiff does not appear to be challenging a rule or regulation. Instead, he appears to 6 allege that he followed the required procedures, but was not allowed “to participate in the 7 prescribed ritual of his Islamic religion.” (ECF No. 1, p. 3). However, Plaintiff has made only 8 conclusory allegations that he complied with the rules and regulations. Based on the exhibits 9 attached to Plaintiff’s complaint, it appears that Plaintiff filed his request to participate in 10 Ramadan on May 7, 2019 (id. at 8), and his request was denied by defendant Howard on May 11 10, 2019, because the Ramadan list was closed (id. at 10). However, except for Plaintiff’s 12 conclusory allegation that he filed his request “well ahead of the time limit required by 13 Chaplain Howard” (id. at 3), there is nothing indicating that Plaintiff’s request was in fact filed 14 well ahead of the time limit (Plaintiff never alleges when requests to participate were due). 15 Plaintiff also makes no mention of whether he asked for an exception based on exceptional 16 circumstances, which, according to the denial by defendant Howard, was allowed (id. at 10). 17 Thus, Plaintiff has not sufficiently alleged that he complied with the required procedures. 18 Moreover, Plaintiff provides little, if any, factual allegations regarding exactly what he 19 was prevented from doing, how long he was prevented from doing it, and how not being 20 allowed to participate in the rituals burdened the practice of his religion. The Court notes that 21 defendant Howard’s denial stated that “[t]hose not admitted to the program now due to list 22 closure, late request, or other reason(s) and are fasting on their own will have a Ramadan 23 prayer schedule sent to them upon request.” (Id.). 24 Thus, Plaintiff has failed to state a claim upon which relief may be granted. The Court 25 previously provided Plaintiff with relevant legal standards and leave to amend his complaint to 26 cure these deficiencies. (ECF No. 9). However, the deadline for Plaintiff to amend his 27 complaint has passed and Plaintiff has not filed an amended complaint. Accordingly, the Court 28 will recommend that this action be dismissed for failure to state a claim. 1 V. FAILURE TO PROSECUTE AND COMPLY 2 “In determining whether to dismiss a[n] [action] for failure to prosecute or failure to 3 comply with a court order, the Court must weigh the following factors: (1) the public’s interest 4 in expeditious resolution of litigation; (2) the court’s need to manage its docket; (3) the risk of 5 prejudice to defendants/respondents; (4) the availability of less drastic alternatives; and (5) the 6 public policy favoring disposition of cases on their merits.” Pagtalunan v. Galaza, 291 F.3d 7 639, 642 (9th Cir. 2002) (citing Ferdik v. Bonzelet, 963 F.2d 1258, 1260-61 (9th Cir. 1992)). 8 “‘The public’s interest in expeditious resolution of litigation always favors dismissal.’” 9 Id. (quoting Yourish v. California Amplifier, 191 F.3d 983, 990 (9th Cir. 1999)). Accordingly, 10 this factor weighs in favor of dismissal. 11 As to the Court’s need to manage its docket, “[t]he trial judge is in the best position to 12 determine whether the delay in a particular case interferes with docket management and the 13 public interest…. It is incumbent upon the Court to manage its docket without being subject to 14 routine noncompliance of litigants....” Id. Plaintiff has failed to respond to the Court’s 15 screening order. This failure to respond is delaying the case and interfering with docket 16 management. Therefore, the second factor weighs in favor of dismissal. 17 Turning to the risk of prejudice, “pendency of a lawsuit is not sufficiently prejudicial in 18 and of itself to warrant dismissal.” Id. (citing Yourish, 191 F.3d at 991). However, “delay 19 inherently increases the risk that witnesses’ memories will fade and evidence will become 20 stale,” id. at 643, and it is Plaintiff’s failure to comply with a court order and to prosecute this 21 case that is causing delay. Therefore, the third factor weighs in favor of dismissal. 22 As for the availability of lesser sanctions, at this stage in the proceedings there is little 23 available to the Court which would constitute a satisfactory lesser sanction while protecting the 24 Court from further unnecessary expenditure of its scarce resources. Considering Plaintiff’s 25 incarceration and in forma pauperis status, monetary sanctions are of little use. And, given the 26 stage of these proceedings, the preclusion of evidence or witnesses is not available. 27 Finally, because public policy favors disposition on the merits, this factor weighs 28 against dismissal. Id. 1 After weighing the factors, the Court finds that dismissal with prejudice is appropriate. 2 || VI. RECOMMENDATIONS AND ORDER 3 Based on the foregoing, the Court HEREBY RECOMMENDS that: 4 1. This action be dismissed, with prejudice, for failure to state a claim, failure to 5 prosecute, and failure to comply with a court order; and 6 2. The Clerk of Court be directed to close this case. 7 These findings and recommendations will be submitted to the United States district 8 || judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(1). Within 9 || fourteen (14) days after being served with these findings and recommendations, Plaintiff may 10 || file written objections with the Court. The document should be captioned “Objections to 11 || Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 12 || objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 13 || Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 14 |} (9th Cir. 1991)). 15 Additionally, IT IS ORDERED that the Clerk of Court is directed to assign a district 16 || judge to this case. 17 13 IT IS SO ORDERED. ‘9 |! Dated: _ January 11, 2021 [sf ey — 20 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28