(PC) Ticer v. Ojeda ( 2022 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 TIMOTHY TICER, 1:20-cv-01202-GSA-PC 12 Plaintiff, ORDER FOR CLERK TO RANDOMLY ASSIGN A UNITED STATES DISTRICT 13 vs. JUDGE TO THIS CASE 14 OJEDA, et al., AND 15 Defendants. FINDINGS AND RECOMMENDATIONS, RECOMMENDING THAT THIS CASE 16 BE DISMISSED, WITH PREJUDICE, FOR FAILURE TO STATE A CLAIM 17 (ECF No. 15.) 18 OBJECTIONS, IF ANY, DUE WITHIN 19 FOURTEEN DAYS 20 21 22 23 I. BACKGROUND 24 Timothy Ticer (“Plaintiff”) is a state prisoner proceeding pro se and in forma pauperis 25 with this civil rights action pursuant to 42 U.S.C. § 1983, which include claims of violation of 26 Equal Protection, First Amendment Free Exercise, and the Religious Land Use and 27 Institutionalized Persons Act of 2000 (“RLUIPA”), 42 U.S.C. § 2000cc-1. Plaintiff filed the 28 Complaint commencing this action on August 26, 2020. (ECF No. 1.) On November 2, 2021, 1 the Court dismissed the Complaint for failure to state a claim, with leave to amend. (ECF No. 2 9.) On December 20, 2021, Plaintiff filed the First Amended Complaint, which is now before 3 the court for screening. (ECF No. 15.) 28 U.S.C. § 1915. 4 II. SCREENING REQUIREMENT 5 The Court is required to screen complaints brought by prisoners seeking relief against a 6 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 7 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 8 “frivolous or malicious,” that fail to state a claim upon which relief may be granted, or that seek 9 monetary relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2). 10 “Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall 11 dismiss the case at any time if the court determines that the action or appeal fails to state a claim 12 upon which relief may be granted.” 28 U.S.C. § 1915(e)(2)(B)(ii). 13 A complaint is required to contain “a short and plain statement of the claim showing that 14 the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not 15 required, but “[t]hreadbare recitals of the elements of a cause of action, supported by mere 16 conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell 17 Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken 18 as true, courts “are not required to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, 19 Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). To state 20 a viable claim, Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim 21 to relief that is plausible on its face.’” Iqbal, 556 U.S. at 678-79; Moss v. U.S. Secret Service, 22 572 F.3d 962, 969 (9th Cir. 2009). While factual allegations are accepted as true, legal 23 conclusions are not. Id. The mere possibility of misconduct falls short of meeting this 24 plausibility standard. Id. 25 III. SUMMARY OF FIRST AMENDED COMPLAINT 26 Plaintiff is presently incarcerated at Corcoran State Prison (CSP), in Corcoran, California. 27 The events at issue in the First Amended Complaint allegedly occurred at the California 28 Substance Abuse Treatment Facility and State Prison (SATF) in Corcoran, California, when 1 Plaintiff was incarcerated there in the custody of the California Department of Corrections and 2 Rehabilitation (CDCR). Plaintiff names as defendants Chaplain Ojeda, Chaplain D. Hentebrink, 3 and Warden Stuart Sherman (collectively, “Defendants”). 4 A summary of Plaintiff’s allegations follows: 5 Plaintiff practices the Muslim faith and is on the approved list for Jumu’ah Muslim 6 Services. Plaintiff asserts that he is entitled to receive and have his religious service of Jumu’ah, 7 which consists of a community prayer required by the Muslim faith. Defendants Ojeda, 8 Hentebrink, and Sherman denied Plaintiff his prayer services with no accommodation to allow 9 Muslim inmates to conduct Jumu’ah services in an area that will hold the community of Muslim 10 inmates. Defendants granted 602 Appeal #06198, telling Plaintiff that Jumu’ah services would 11 be accommodated, but they never were. Defendants conspired and decided together, or acted 12 alone individually, to refuse Plaintiff his religious services. 13 Defendants therefore violated the First, Eighth, Fourteenth Amendments and the 14 Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA). Defendants 15 participated in a scheme of preferential treatment implementation whereby they did not allow 16 persons of the Muslim faith to practice their religion the same as persons of the Christian and 17 Jewish Faiths. Defendants Ojeda, Hentebrink, and Sherman denied Muslims their Jumu’ah 18 Services but allowed those of the Christian and Jewish faiths to have theirs. 19 Plaintiff seeks injunctive relief and punitive and exemplary damages. 20 IV. PLAINTIFF’S CLAIMS 21 A. 42 U.S.C. § 1983 22 The Civil Rights Act under which this action was filed provides: 23 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 to 24 be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities 25 secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . . 26 27 42 U.S.C. § 1983. 28 “[Section] 1983 ‘is not itself a source of substantive rights,’ but merely provides ‘a 1 method for vindicating federal rights elsewhere conferred.’” Graham v. Connor, 490 U.S. 386, 2 393-94 (1989) (quoting Baker v. McCollan, 443 U.S. 137, 144 n.3 (1979)); see also Chapman v. 3 Houston Welfare Rights Org., 441 U.S. 600, 618 (1979); Hall v. City of Los Angeles, 697 F.3d 4 1059, 1068 (9th Cir. 2012); Crowley v. Nevada, 678 F.3d 730, 734 (9th Cir. 2012); Anderson v. 5 Warner, 451 F.3d 1063, 1067 (9th Cir. 2006). “To the extent that the violation of a state law 6 amounts to the deprivation of a state-created interest that reaches beyond that guaranteed by the 7 federal Constitution, Section 1983 offers no redress.” Id. 8 To state a claim under § 1983, a plaintiff must allege that (1) the defendant acted under 9 color of state law and (2) the defendant deprived him or her of rights secured by the Constitution 10 or federal law. Long v. County of Los Angeles, 442 F.3d 1178, 1185 (9th Cir. 2006); see also 11 Marsh v. Cnty. of San Diego, 680 F.3d 1148, 1158 (9th Cir. 2012) (discussing “under color of 12 state law”). A person deprives another of a constitutional right, “within the meaning of § 1983, 13 ‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act 14 which he is legally required to do that causes the deprivation of which complaint is made.’” 15 Preschooler II v. Clark Cnty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting 16 Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)). “The requisite causal connection may be 17 established when an official sets in motion a ‘series of acts by others which the actor knows or 18 reasonably should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 19 F.3d at 1183 (quoting Johnson, 588 F.2d at 743). This standard of causation “closely resembles 20 the standard ‘foreseeability’ formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 21 637 F.2d 1350, 1355 (9th Cir. 1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 22 1026 (9th Cir. 2008). 23 1. Claims Against the Prison Chaplain Defendants 24 Two of Plaintiff’s named Defendants, Ojeda and D. Hentebrink, are identified as 25 Chaplains employed at SATF. To state a claim under either 42 U.S.C. § 1983 or RLUIPA, a 26 plaintiff must allege that a defendant violated his rights while acting “under color of state law.” 27 Uhuru v. Bonnifield, No. 219CV10449JVSKES, 2020 WL 2219208, at *4 (C.D. Cal. Jan. 28, 28 2020) (quoting Florer v. Congregation Pidyon Shevuyim, N.A., 639 F.3d 916, 921-22 (9th Cir. 1 2011)). “[A] prison chaplain . . . is not a state actor when he engages in inherently ecclesiastical 2 functions (that is, when he performs spiritual duties as a leader in his church).” Id. at 3 925 (quoting Montano v. Hedgepeth, 120 F.3d 844, 851 (8th Cir. 1997)); see also Uhuru v. 4 Moskowitz, No. 07-07109-JVS (VBK), 2009 U.S. Dist. LEXIS 134433 at *19-24, 2009 WL 5 2020758 at *8-9 (C.D. Cal. May 28, 2009) (relying on Montano), report & recommendation 6 adopted at 2009 U.S. Dist. LEXIS 58089, 2009 WL 2020758 (C.D. Cal. July 6, 2009). 7 In the Court’s first screening order issued on November 2, 2021, the Court informed 8 Plaintiff that he did not allege sufficient facts in the original Complaint, that Plaintiff’s complaint 9 failed to include facts to show how each of the named Defendants personally acted against him, 10 stated that he must explain what happened, when and where it happened, who said or did what. 11 Again, in the First Amended Complaint, Plaintiff has failed to explain Defendants’ actions in 12 denying him religious services, including when and where it happened, and who said or did what. 13 Just as importantly, Plaintiff's allegations against the two chaplain defendants are so vague that 14 it is unclear if Plaintiff challenges their decisions concerning purely ecclesiastical functions, such 15 as how to conduct worship services, or another type of decision. 16 Therefore, Plaintiff fails to state a cognizable claim against either of the prison chaplains. 17 2. Warden – Personal Participation 18 Plaintiff names Warden Sherman, who holds a supervisory position, as a Defendant. A 19 supervisor is only liable for the constitutional violations of . . . subordinates if the supervisor 20 participated in or directed the violations, or knew of the violations and failed to act to prevent 21 them. Liability may not be imposed under a theory of respondeat superior, and there must exist 22 some causal connection between the conduct of each named defendant and the violation at issue. 23 Iqbal, 556 U.S. at 676-77; Lemire v. California Dep’t of Corr. and Rehab., 726 F.3d 1062, 1074- 24 75(9th Cir. 2013); Lacey v. Maricopa County, 693 F.3d 896, 915-16 (9th Cir. 2012) (en banc); 25 Starr v. Baca, 652 F.3d 1202, 1205-08 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012). 26 As in Plaintiff’s original Complaint, Plaintiff fails to state how Defendant Warden 27 Sherman personally participated in the violations at issue. Plaintiff also fails to explain what 28 1 Warden Sherman individually did that violated Plaintiff’s rights. Therefore, Plaintiff fails to state 2 any claims in the First Amended Complaint against Defendant Warden Sherman. 3 /// 4 3. Equal Protection 5 The Equal Protection Clause requires the State to treat all similarly situated people 6 equally. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439, 105 S.Ct. 3249, 87 7 L.Ed.2d 313 (1985). This does not mean, however, that all prisoners must receive identical 8 treatment and resources. See Cruz v. Beto, 405 U.S. 319, 322 n. 2 (1972); Ward v. Walsh, 1 F.3d 9 873, 880 (9th Cir. 1993); Allen v. Toombs, 827 F.2d 563, 568–69 (9th Cir. 1987). 10 “To prevail on an Equal Protection claim brought under § 1983, Plaintiff must allege facts 11 plausibly showing that ‘“the defendants acted with an intent or purpose to discriminate against 12 [them] based upon membership in a protected class,’” (citing see Thornton v. City of St. Helens, 13 425 F.3d 1158, 1166 (9th Cir. 2005) (quoting Lee v. City of Los Angeles, 250 F.3d 668, 686 (9th 14 Cir. 2001)), or that similarly situated individuals were intentionally treated differently without a 15 rational relationship to a legitimate state purpose, Engquist v. Oregon Department of Agr., 553 16 U.S. 591, 601-02, 128 S.Ct. 2146 (2008); Village of Willowbrook v. Olech, 528 U.S. 562, 564, 17 120 S.Ct. 1073 (2000); Lazy Y Ranch Ltd. v. Behrens, 546 F.3d 580, 592 (9th Cir. 2008); North 18 Pacifica LLC v. City of Pacifica, 526 F.3d 478, 486 (9th Cir. 2008). 19 Plaintiff fails to state an equal protection claim. Again, in the Court’s first screening 20 order issued on November 2, 2021, the Court informed Plaintiff that he did not alleged facts in 21 the original Complaint showing how each of the named Defendants personally acted against him 22 when he requested Jumu’ah services. Plaintiff has failed to demonstrate how each of the 23 individual Defendants exhibited their own personal conduct against him with an intent or 24 purpose to discriminate against Plaintiff because he is Muslim. Plaintiff has failed to explain 25 each individual Defendants’ actions in denying him religious services, including when and where 26 it happened, and who said or did what, indicating an intent to discriminate against Plaintiff 27 because he is a Muslim. Nor did Plaintiff explain in any detail, other than by pure assertions, 28 1 how the Defendants treated similarly situated persons of the Christian and Jewish faiths 2 differently. 3 Thus, based on the foregoing, Plaintiff fails to state a claim for violation of his right to 4 equal protection. 5 /// 6 4. Free Exercise of Religion – First Amendment Claim 7 The First Amendment is made applicable to state action by incorporation through the 8 Fourteenth Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947). In order 9 to establish a free exercise violation, a prisoner must show that a defendant substantially 10 burdened the practice of his religion without any justification reasonably related to legitimate 11 penological interests. See Shakur v. Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008); see, e.g., 12 Bolds v. Cavazos, No. 14-15176, 599 Fed. Appx. 307 (9th Cir. March 20, 2015) (unpublished 13 memorandum disposition) (dismissing Free Exercise Clause claim because inmate failed to show 14 that confiscation of television “substantially burdened” the practice of religion). “A substantial 15 burden . . . place[s] more than an inconvenience on religious exercise; it must have a tendency to 16 coerce individuals into acting contrary to their religious beliefs or exert substantial pressure on 17 an adherent to modify his behavior and to violate his beliefs.” Jones v. Williams, 791 F.3d 1023, 18 1031-32 (9th Cir. 2015). De minimis or minor burdens on the free exercise of religion are not of 19 a constitutional dimension, even if the belief upon which the exercise is based is sincerely held 20 and rooted in religious belief. See e.g., Rapier v. Harris, 172 F.3d 999, 1006 n. 4 (7th Cir. 1999) 21 (the unavailability of a non-pork tray for inmate at 3 meals out of 810 does not constitute more 22 than a de minimis burden on inmate’s free exercise of religion). 23 The “sincerity test,” and not the centrality test, applies to prisoners’ free-exercise claims. 24 Penwell v. Holtgeerts, 386 F. App’x 665, 667 (9th Cir. 2010) (citing see Shakur, 514 F.3d at 25 884–85). Under the sincerity test, a prisoner’s religious concern implicates the free exercise 26 clause if it is (1) “sincerely held” and (2) “rooted in religious belief,” rather than in secular 27 philosophical concerns. Id. (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994) (quotations 28 omitted); see also Shakur, 514 F.3d at 885 (adopting Malik’s formulation of the sincerity test)). 1 A prison regulation that impinges on an inmate’s First Amendment rights is valid if it is 2 reasonably related to legitimate penological interests. See O’Lone v. Estate of Shabazz, 482 U.S. 3 342, 349 (1987) (quoting Turner v. Safley, 482 U.S. 78, 89 (1987)). Allegations of denial of an 4 opportunity to practice religion “must be found reasonable in light of four factors: (1) whether 5 there is a ‘valid, rational connection’ between the regulation and a legitimate government interest 6 put forward to justify it; (2) ‘whether there are alternative means of exercising the right that 7 remain open to prison inmates;’ (3) whether accommodation of the asserted constitutional right 8 would have a significant impact on guards and other inmates; and (4) whether ready alternatives 9 are absent (bearing on the reasonableness of the regulation).” Pierce v. County of Orange, 526 10 F.3d 1190, 1209 (9th Cir. 2008) (citing Turner, 482 U.S. at 89-90); see Beard v. Banks, 548 U.S. 11 521, 532-33 (2006) (noting that application of the Turner factors does not turn on balancing the 12 factors, but on determining whether the defendants show a reasonable relation, as opposed to 13 merely a logical relation). 14 Here, Plaintiff has established that he is of the Muslim faith, and therefore implicates the 15 free exercise clause. Plaintiff alleges that he was denied the opportunity to participate in Jumu’ah 16 community prayer as required for Muslims. This prevented Plaintiff from engaging in duties and 17 beliefs he sincerely believes in, consistent with his faith. 18 However, to state a free exercise claim, Plaintiff must allege facts showing that his 19 religious practice was “substantially” burdened, and that it was more that the failure to offer such 20 services to him to miss Jumu’ah services. Nor has he alleged that the failure to provide such 21 services was not reasonably related to legitimate penological interests. Plaintiff fails to allege 22 facts in the First Amended Complaint showing how each of the individual Defendants, by name, 23 personally and individually acted against him, substantially burdening his practice of religion. 24 Therefore, Plaintiff fails to state a claim that his rights to freely exercise his religion under 25 the First Amendment were violated. 26 5. Conspiracy 27 Conspiracy under § 1983 requires proof of “an agreement or meeting of the minds to 28 violate constitutional rights,” Franklin v. Fox, 312 F.3d 423, 441 (9th Cir. 2002) (internal 1 quotation marks omitted) (quoting United Steelworkers of Am. v. Phelps Dodge Corp., 865 F.2d 2 1539, 1540-41 (9th Cir. 1989)), and that an “‘actual deprivation of his constitutional rights 3 resulted from the alleged conspiracy,’” Hart v. Parks, 450 F.3d 1059, 1071 (9th Cir. 2006) 4 (quoting Woodrum v. Woodward County, 866 F.2d 1121, 1126 (9th Cir. 1989) ). “‘To be liable, 5 each participant in the conspiracy need not know the exact details of the plan, but each participant 6 must at least share the common objective of the conspiracy.’” Franklin, 312 F.3d at 441 (quoting 7 United Steelworkers, 865 F.2d at 1541). A plaintiff must allege facts with sufficient particularity 8 to show an agreement or a meeting of the minds to violate the plaintiff’s constitutional rights. 9 Miller v. Cal. Dep’t of Soc. Servs., 355 F.3d 1172, 1177 n.3 (9th Cir. 2004) (citing Woodrum, 10 866 F.2d at 1126). The mere statement that defendants “conspired” or acted “in retaliation” is 11 not sufficient to state a claim. “Threadbare recitals of the elements of a cause of action, supported 12 by mere conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 13 U.S. at 555). 14 The Ninth Circuit requires a plaintiff alleging a conspiracy to violate civil rights to “state 15 specific facts to support the existence of the claimed conspiracy.” Olsen v. Idaho State Bd. of 16 Med., 363 F.3d 916, 929 (9th Cir. 2004) (citation and internal quotation marks omitted) 17 (discussing conspiracy claim under § 1985); Burns v. County of King, 883 F.2d 819, 821 (9th 18 Cir. 1989) (“To state a claim for conspiracy to violate one’s constitutional rights under section 19 1983, the plaintiff must state specific facts to support the existence of the claimed conspiracy.” 20 (citation omitted) ). 21 Plaintiff’s allegations of conspiracy under § 1983 fail to state a claim because his 22 allegations are conclusory and merely speculative. He alleges that Defendants “conspired and 23 decided together, or acted alone individually, to refuse Plaintiff his religious services.” Plaintiff 24 does not provide any specific facts that show that any of the Defendants had an agreement to 25 discriminate against him or violate his religious rights. There are absolutely no facts indicating 26 an agreement between any of the Defendants to conspire against Plaintiff. Therefore, Plaintiff 27 fails to state a claim for conspiracy. 28 6. Injunctive Relief 1 In addition to monetary damages, Plaintiff requests injunctive relief. Plaintiff has been 2 transferred from SATF to a CSP, and has not alleged facts demonstrating that there is a 3 reasonable expectation that he will be transferred back to SATF. This moots his claims for 4 injunctive relief. Uhuru, 2020 WL 2219208, at *3 (citing see Johnson v. Moore, 948 F.2d 517, 5 /// 6 519 (9th Cir. 1991) (per curiam); see also Andrews v. Cervantes, 493 F.3d 1047, 1053 n.5 (9th 7 Cir. 2007)). 8 Therefore, Plaintiff fails to state a claim for injunctive relief. 9 B. RLUIPA – Right to Practice Religion 10 The Religious Land Use and Institutionalized Persons Act of 2000 (“RLUIPA”) provides: 11 No government shall impose a substantial burden on the religious exercise1 of a person residing in or confined to an institution . . ., 12 even if the burden results from a rule of general applicability, unless the government demonstrates that imposition of the burden 13 on that person: 14 (1) is in furtherance of a compelling government interest; and 15 (2) is the least restrictive means of furthering that compelling government interest. 16 17 42 U.S.C. § 2000cc-1. 18 “RLUIPA is to be construed broadly in favor of protecting an inmate’s right to exercise 19 his religious beliefs.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). “RLUIPA 20 disallows policies that impose ‘a substantial burden on . . . religious exercise’ unless the burden 21 ‘furthers “a compelling governmental interest,” and does so by “the least restrictive means.”’” 22 Alvarez v. Hill, 518 F.3d 1152 (9th Cir. 2008) (quoting id. at 994 quoting 42 U.S.C. § 2000cc– 23 1(a)). A “substantial burden” is one that imposes a significantly great restriction or onus on 24 religious exercise. San Jose Christian College v. City of Morgan Hill, 360 F.3d 1024, 1034–35 25 26 1 “Congress defined ‘religious exercise’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” Holt v. Hobbs, 135 S.Ct. 853, 860, 190 L.Ed.2d 747 27 (2015). (quoting § 2000cc-5(7)(A)). In fact, RLUIPA bars inquiry into whether a particular belief or practice is ‘central’ to a prisoner’s religion.” Cutter v. Wilkinson, 544 U.S. 709, 725 n.13, 125 S.Ct. 2113, 161 L.Ed. 1020 28 (2005) (overruling Establishment Clause to RLUIPA). 1 (9th Cir. 2004). The Supreme Court has found a substantial burden “where the state denies an 2 important benefit because of conduct mandated by religious belief, thereby putting substantial 3 pressure on an adherent to modify his behavior and to violate his beliefs.” Warsoldier, 418 F.3d 4 at 995 (quoting Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717–18 5 (1981)). In any RLUIPA claim, one must first identify the “religious exercise” allegedly 6 impinged upon, and then must ask whether the prison regulation at issue “substantially burdens” 7 that religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 2008). “Courts 8 are expected to apply RLUIPA’s standard with due deference to the experience and expertise of 9 prison and jail administrators in establishing necessary regulations and procedures to maintain 10 good order, security and discipline, consistent with consideration of costs and limited resources.” 11 Hartmann v. CDCR, 707 F.3d 1114, 1124-25 (9th Cir. 2013) (citing Cutter v. Wilkinson, 544 12 U.S. 709, 723, 125 S.Ct. 2325 (2003)) (internal quotation marks omitted). 13 Money damages are not available under RLUIPA against the state or state officials sued 14 in their official capacities, Sossamon v. Texas, 563 U.S. 277, 279, 131 S.Ct. 1651, 1655 (2011), 15 and RLUIPA does not contemplate liability of government employees in their individual 16 capacity. Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014). Thus, a RLUIPA claim may 17 proceed only for declaratory or injunctive relief against defendants acting within their official 18 capacities. 19 Therefore, Plaintiff cannot state a claim for monetary damages for a violation of RLUIPA. 20 As well, and as discussed above in this order, his request for injunctive relief is moot because he 21 has been transferred from SATF to CSP. 22 Therefore, Plaintiff fails to state a claim for violation of RLUIPA. 23 V. CONCLUSION, ORDER, AND RECOMMENDATIONS 24 For the reasons set forth above, the court finds that Plaintiff fails to state any cognizable 25 § 1983 or RLUIPA claims in the Complaint against any of the individual Defendants. Under 26 Rule 15(a) of the Federal Rules of Civil Procedure, “[t]he court should freely give leave to amend 27 when justice so requires.” However, a district court may deny leave to amend when amendment 28 would be futile.” Hartmann, 707 F.3d at 1130. In this action, the Court previously granted 1 Plaintiff an opportunity to amend the complaint, with guidance by the Court. Plaintiff has now 2 filed two complaints without alleging facts against any of the defendants which state a claim 3 under § 1983 or RLUIPA. The Court finds that the deficiencies outlined above are not capable 4 /// 5 of being cured by amendment, and therefore further leave to amend should not be granted. 28 6 U.S.C. § 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000). 7 Accordingly, IT IS HEREBY ORDERED that the Clerk of Court randomly assign a 8 United States District Judge to this case; 9 AND 10 Based on the foregoing, IT IS HEREBY RECOMMENDED that: 11 1. This case be dismissed, with prejudice, for failure to state a claim; and 12 2. The Clerk be directed to enter judgment and close this case. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within fourteen 15 (14) days after the date of service of these findings and recommendations, Plaintiff may file 16 written objections with the court. Such a document should be captioned “Objections to 17 Magistrate Judge’s Findings and Recommendations.” Plaintiff is advised that failure to file 18 objections within the specified time may result in the waiver of rights on appeal. Wilkerson v. 19 Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394 20 (9th Cir. 1991)). 21 IT IS SO ORDERED. 22 23 Dated: November 23, 2022 /s/ Gary S. Austin UNITED STATES MAGISTRATE JUDGE 24 25 26 27 28