(PC) Israel v. Shmary ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 AKIVA AVIKAIDA ISRAEL, No. 2:21-cv-0262-TLN-EFB P 12 Plaintiff, 13 v. ORDER 14 RABBI SHMARY, et al., 15 Defendants. 16 17 Plaintiff is a state prisoner proceeding without counsel in an action brought under 42 18 U.S.C. § 1983. She has filed an amended complaint (ECF No. 22) which the court must screen.1 19 In the amended complaint, plaintiff alleges that Rabbi Shmary and Shmary’s supervisor, 20 Lance Eshelman, unreasonably delayed the approval of plaintiff’s request for a Kosher diet plan. 21 ECF No. 22 at 4, 7. As a result, plaintiff, who is Jewish, was made “to consume unclean meals 22 on . . . the Holiest Days in Judaism: Yom Kippur and Rosh Hashanah.” Id. at 4. 23 Plaintiff further alleges she is gay and transgender. Id. at 5. While her request for a 24 Kosher diet was pending, Shmary allegedly “made comments indicative of a homophobic 25 1 Federal courts must engage in a preliminary screening of cases in which prisoners seek 26 redress from a governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The court must identify cognizable claims or dismiss the complaint, or any portion 27 of the complaint, if the complaint “is frivolous, malicious, or fails to state a claim upon which relief may be granted,” or “seeks monetary relief from a defendant who is immune from such 28 relief.” Id. § 1915A(b). 1 consciousness, such as ‘transgenders and Torah aren’t a godly pairing,’ ‘same-sex is an 2 abomination,’ [and] ‘homosexuality is against Torah and you’re homosexual.’” Id. It took 3 Shmary and Eshelman 222 days to respond to plaintiff’s request for a Kosher diet, even though 4 such responses are typically provided within 30 days. Id. at 4, 7. Plaintiff claims her request was 5 ultimately approved thanks to the intervention by the Jewish Community Foundation of Los 6 Angeles. Id. at 5. Plaintiff claims she wrote to the defendants (including Warden Covello and 7 Chief Deputy Warden Holmes) accusing them of discrimination, but they did not deny or 8 otherwise respond to her accusations. Id. 9 Plaintiff asserts claims under the First Amendment, the Religious Land Use and 10 Institutionalized Persons Act of 2000, and the Equal Protection clause of the Fourteenth 11 Amendment. She seeks declaratory relief, injunctive relief, and $50,000 in damages. Id. at 9-10. 12 Liberally construed, plaintiff’s allegations are sufficient to state the following potentially 13 cognizable claims:2 (1) a First Amendment freedom of religion claim against defendants Shmary 14 and Eshelman; (2) an official-capacity RLUIPA claim for declaratory and injunctive relief only, 15 against defendants Shmary and Eshelman; and (3) a Fourteenth Amendment equal protection 16 claim3 against Shmary. See Wood v. Yordy, 753 F.3d 899, 902-04 (9th Cir. 2014) (RLUIPA 17 neither permits individual capacity suits nor suits for monetary damages).4 18 ///// 19 2 Plaintiff fails to state a claim against “institution heads” Warden Covello and Chief 20 Deputy Warden Holmes (see, e.g., ECF No. 22 at 4), as plaintiff appears to have named them solely because of their supervisory roles. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) 21 (no respondeat superior liability under section 1983). 22 3 There is no basis for an equal protection claim against any other defendant because 23 plaintiff does not allege that any other defendant acted with an intent or purpose to discriminate against plaintiff because of her membership in any protected class. See Thornton v. City of St. 24 Helens, 425 F.3d 1158, 1166-67 (9th Cir. 2005). Plaintiff’s allegation, without more, that the defendants did not deny or otherwise respond to plaintiff’s accusations of discriminatory 25 treatment fails to state a claim upon which relief could be granted. 26 4 Like the original complaint, the amended complaint continues to list “Doe” defendants. 27 As plaintiff is aware, unknown persons cannot be served with process until they are identified by their real names and the court will not investigate the names and identities of unnamed 28 defendants. 1 For these reasons, plaintiff may either proceed only on the potentially cognizable First 2 Amendment and RLUIPA claims against defendants Shmary and Eshelman and the equal 3 protection claim against Shmary or she may amend her complaint to attempt to cure the 4 complaint’s deficiencies. Plaintiff is not obligated to amend her complaint. 5 Leave to Amend 6 Plaintiff may file an amended complaint to attempt to cure the deficiencies noted above. 7 Any amended complaint must identify as a defendant only persons who personally participated in 8 a substantial way in depriving him of a federal constitutional right. Johnson v. Duffy, 588 F.2d 9 740, 743 (9th Cir. 1978) (a person subjects another to the deprivation of a constitutional right if 10 he does an act, participates in another’s act or omits to perform an act he is legally required to do 11 that causes the alleged deprivation). Plaintiff is not obligated to file an amended complaint. 12 Plaintiff may not change the nature of this suit by alleging new, unrelated claims in the 13 amended complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007). 14 Any amended complaint must be written or typed so that it so that it is complete in itself 15 without reference to any earlier filed complaint. E.D. Cal. L.R. 220. This is because an amended 16 complaint supersedes any earlier filed complaint, and once an amended complaint is filed, the 17 earlier filed complaint no longer serves any function in the case. See Forsyth v. Humana, 114 18 F.3d 1467, 1474 (9th Cir. 1997) (the “‘amended complaint supersedes the original, the latter 19 being treated thereafter as non-existent.’”) (quoting Loux v. Rhay, 375 F.2d 55, 57 (9th Cir. 20 1967)). 21 The court cautions plaintiff that failure to comply with the Federal Rules of Civil 22 Procedure, this court’s Local Rules, or any court order may result in this action being dismissed. 23 See E.D. Cal. L.R. 110. 24 ///// 25 ///// 26 ///// 27 ///// 28 ///// 1 Conclusion 2 Accordingly, it is ORDERED that: 3 1. Plaintiff's amended complaint (ECF No. 22) alleges, for screening purposes, the 4 following potentially cognizable claims: 5 a. aFirst Amendment freedom of religion claim against defendants Shmary 6 and Eshelman; 7 b. an official capacity RLUIPA claim for declaratory and injunctive relief 8 against defendants Shmary and Eshemlan; and 9 c. □ Fourteenth Amendment equal protection claim against defendant Shmary. 10 2. All other claims are dismissed with leave to amend within 30 days from the date of 11 service of this order. Plaintiff is not obligated to amend her complaint. 12 3. Within thirty days plaintiff shall return the notice below advising the court whether 13 she elects to proceed with the cognizable claims or file an amended complaint. If 14 the former option is selected and returned, the court will enter an order directing 15 service at that time. 16 4. Failure to comply with any part of this this order may result in dismissal of this 17 action. 18 || Dated: September 8, 2021. oy Vy Z, / Z 4 iL Mm 4 19 EDMUND F. BRENNAN 50 UNITED STATES MAGISTRATE JUDGE 21 22 23 24 25 26 27 28 1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 AKIVA AVIKAIDA ISRAEL, No. 2:21-cv-0262-TLN-EFB P 10 Plaintiff, 11 v. NOTICE 12 RABBI SHMARY, et al., 13 Defendants. 14 15 In accordance with the court’s Screening Order, plaintiff hereby elects to: 16 17 (1) ______ proceed only with the First Amendment freedom of religion claim and 18 official capacity RLUIPA claim for declaratory and injunctive relief against defendants Shmary 19 and Eshelman and the Fourteenth Amendment equal protection claim against defendant Shmary; 20 21 OR 22 23 (2) ______ delay serving any defendant and file a second amended complaint. 24 25 _________________________________ 26 Plaintiff 27 Dated: 28