Gause v. Vicklund et al
Filing
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ORDER granting 2 Motion for Leave to Proceed in forma pauperis. Defendant Ryan is dismissed without prejudice. Defendant Vicklund must answer the Complaint. The Clerk of Court must send Plaintiff a service packet including the Complaint (Doc. 1), this Order, and both summons and request for waiver forms for Defendant Vicklund. Plaintiff must complete and return the service packet to the Clerk of Court within 21 days of the date of filing of this Order. This matter is referred to Magistrate Judge Mark E. Aspey for all pretrial proceedings as authorized under 28 U.S.C. § 636(b)(1). Signed by Judge Robert C Broomfield on 4/14/11.(DMT)
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IN THE UNITED STATES DISTRICT COURT
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FOR THE DISTRICT OF ARIZONA
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Richard LeGrand Gause,
Plaintiff,
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vs.
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J. Vicklund, et al.,
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Defendants.
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No. CV 11-714-PHX-RCB (MEA)
ORDER
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Plaintiff Richard LeGrand Gause, who is confined in the Arizona State Prison
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Complex-Eyman in Florence, Arizona, has filed a pro se civil rights Complaint pursuant to
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42 U.S.C. § 1983 (Doc. 1) and an Application to Proceed In Forma Pauperis (Doc. 2). The
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Court will order Defendant Vicklund to answer the Complaint and will dismiss Defendant
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Ryan without prejudice.
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I.
Application to Proceed In Forma Pauperis and Filing Fee
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§ 1915(a). Plaintiff must pay the statutory filing fee of $350.00. 28 U.S.C. § 1915(b)(1).
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The Court will assess an initial partial filing fee of $16.06. The remainder of the fee will be
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collected monthly in payments of 20% of the previous month’s income each time the amount
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in the account exceeds $10.00. 28 U.S.C. § 1915(b)(2). The Court will enter a separate
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Order requiring the appropriate government agency to collect and forward the fees according
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Plaintiff’s Application to Proceed In Forma Pauperis will be granted. 28 U.S.C.
to the statutory formula.
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II.
Statutory Screening of Prisoner Complaints
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The Court is required to screen complaints brought by prisoners seeking relief against
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a governmental entity or an officer or an employee of a governmental entity. 28 U.S.C.
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§ 1915A(a). The Court must dismiss a complaint or portion thereof if a plaintiff has raised
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claims that are legally frivolous or malicious, that fail to state a claim upon which relief may
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be granted, or that seek monetary relief from a defendant who is immune from such relief.
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28 U.S.C. § 1915A(b)(1), (2).
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A pleading must contain a “short and plain statement of the claim showing that the
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pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2) (emphasis added). While Rule 8 does not
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demand detailed factual allegations, “it demands more than an unadorned, the-defendant-
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unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009).
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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory
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statements, do not suffice.” Id.
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“[A] complaint must contain sufficient factual matter, accepted as true, to ‘state a
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claim to relief that is plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. Twombly,
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550 U.S. 544, 570 (2007)). A claim is plausible “when the plaintiff pleads factual content
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that allows the court to draw the reasonable inference that the defendant is liable for the
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misconduct alleged.” Id. “Determining whether a complaint states a plausible claim for
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relief [is] . . . a context-specific task that requires the reviewing court to draw on its judicial
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experience and common sense.” Id. at 1950. Thus, although a plaintiff’s specific factual
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allegations may be consistent with a constitutional claim, a court must assess whether there
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are other “more likely explanations” for a defendant’s conduct. Id. at 1951.
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must “continue to construe pro se filings liberally.” Hebbe v. Pliler, 627 F.3d 338, 342 (9th
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Cir. 2010). A “complaint [filed by a pro se prisoner] ‘must be held to less stringent standards
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than formal pleadings drafted by lawyers.’” Id. (quoting Erickson v. Pardus, 551 U.S. 89,
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94 (2007) (per curiam)).
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But as the United States Court of Appeals for the Ninth Circuit has instructed, courts
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III.
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Complaint
In his one-count Complaint, Plaintiff sues Defendants Arizona Department of
Corrections (ADOC) Senior Chaplain J. Vicklund and ADOC Director Chuck Ryan.
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Plaintiff alleges a violation of his First Amendment right to the free exercise of his
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religion. He claims that he is recognized by the ADOC as being an Orthodox Jew, but
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Defendant Vicklund denied Plaintiff’s request to follow the recognized dietary observances
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of his religion—a kosher diet. Plaintiff contends that providing him with a kosher diet does
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not burden the ADOC because the ADOC already provides a kosher diet to recognized
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“Jewish prefer[e]nce” inmates.
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In his Request for Relief, Plaintiff seeks a kosher diet and monetary damages.
IV.
Claims for Which an Answer Will be Required
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Liberally construed, Plaintiff has stated a First Amendment free-exercise claim against
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Defendant Vicklund. The Court will require Defendant Vicklund to answer the Complaint.
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V.
Failure to State a Claim
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To the extent Plaintiff’s claim against Defendant Ryan is predicated on Defendant
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Ryan’s denial of Plaintiff’s grievance regarding Plaintiff’s request for a kosher diet, this is
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insufficient to state a claim against Defendant Ryan. See Shehee v. Luttrell, 199 F.3d 295,
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300 (6th Cir. 1999) (defendants did not commit constitutional violations when they denied
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administrative grievances, failed to intervene on plaintiff’s behalf, and failed to remedy
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allegedly unconstitutional behavior).
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To the extent Plaintiff’s claim is predicated on Defendant Ryan’s position as the
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Director of the ADOC, this too is insufficient to state a claim against Defendant Ryan. There
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is no respondeat superior liability under § 1983, and therefore, a defendant’s position as the
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supervisor of persons who allegedly violated Plaintiff’s constitutional rights does not impose
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liability. Monell v. New York City Department of Social Services, 436 U.S. 658, 691-92
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(1978); Hamilton v. Endell, 981 F.2d 1062, 1067 (9th Cir. 1992); Taylor v. List, 880 F.2d
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1040, 1045 (9th Cir. 1989). “Because vicarious liability is inapplicable to Bivens and § 1983
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suits, a plaintiff must plead that each Government-official defendant, through the official’s
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own individual actions, has violated the Constitution.” Iqbal, 129 S. Ct. at 1948.
Therefore, the Court will dismiss without prejudice Defendant Ryan.
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VI.
Warnings
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A.
Release
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Plaintiff must pay the unpaid balance of the filing fee within 120 days of his release.
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Also, within 30 days of his release, he must either (1) notify the Court that he intends to pay
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the balance or (2) show good cause, in writing, why he cannot. Failure to comply may result
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in dismissal of this action.
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B.
Address Changes
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Plaintiff must file and serve a notice of a change of address in accordance with Rule
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83.3(d) of the Local Rules of Civil Procedure. Plaintiff must not include a motion for other
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relief with a notice of change of address. Failure to comply may result in dismissal of this
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action.
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C.
Copies
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Plaintiff must serve Defendant, or counsel if an appearance has been entered, a copy
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of every document that he files. Fed. R. Civ. P. 5(a). Each filing must include a certificate
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stating that a copy of the filing was served. Fed. R. Civ. P. 5(d). Also, Plaintiff must submit
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an additional copy of every filing for use by the Court. See LRCiv 5.4. Failure to comply
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may result in the filing being stricken without further notice to Plaintiff.
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D.
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If Plaintiff fails to timely comply with every provision of this Order, including these
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warnings, the Court may dismiss this action without further notice. See Ferdik v. Bonzelet,
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963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may dismiss an action for failure to
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comply with any order of the Court).
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IT IS ORDERED:
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(1)
Possible Dismissal
Plaintiff’s Application to Proceed In Forma Pauperis (Doc. 2) is granted.
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(2)
As required by the accompanying Order to the appropriate government agency,
Plaintiff must pay the $350.00 filing fee and is assessed an initial partial filing fee of $16.06.
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(3)
Defendant Ryan is dismissed without prejudice.
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(4)
Defendant Vicklund must answer the Complaint.
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(5)
The Clerk of Court must send Plaintiff a service packet including the
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Complaint (Doc. 1), this Order, and both summons and request for waiver forms for
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Defendant Vicklund.
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(6)
Plaintiff must complete1 and return the service packet to the Clerk of Court
within 21 days of the date of filing of this Order. The United States Marshal will not provide
service of process if Plaintiff fails to comply with this Order.
(7)
If Plaintiff does not either obtain a waiver of service of the summons or
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complete service of the Summons and Complaint on Defendant within 120 days of the filing
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of the Complaint or within 60 days of the filing of this Order, whichever is later, the action
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may be dismissed. Fed. R. Civ. P. 4(m); LRCiv 16.2(b)(2)(B)(I).
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(8)
The United States Marshal must retain the Summons, a copy of the Complaint,
and a copy of this Order for future use.
(9)
The United States Marshal must notify Defendant of the commencement of this
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action and request waiver of service of the summons pursuant to Rule 4(d) of the Federal
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Rules of Civil Procedure. The notice to Defendant must include a copy of this Order. The
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Marshal must immediately file signed waivers of service of the summons. If a waiver
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of service of summons is returned as undeliverable or is not returned by Defendant
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within 30 days from the date the request for waiver was sent by the Marshal, the
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Marshal must:
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If a Defendant is an officer or employee of the Arizona Department of Corrections,
Plaintiff must list the address of the specific institution where the officer or employee works.
Service cannot be effected on an officer or employee at the Central Office of the Arizona
Department of Corrections unless the officer or employee works there.
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(a) personally serve copies of the Summons, Complaint, and this Order upon
Defendant pursuant to Rule 4(e)(2) of the Federal Rules of Civil Procedure; and
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(b) within 10 days after personal service is effected, file the return of service
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for Defendant, along with evidence of the attempt to secure a waiver of service of the
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summons and of the costs subsequently incurred in effecting service upon Defendant.
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The costs of service must be enumerated on the return of service form (USM-285) and
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must include the costs incurred by the Marshal for photocopying additional copies of
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the Summons, Complaint, or this Order and for preparing new process receipt and
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return forms (USM-285), if required. Costs of service will be taxed against the
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personally served Defendant pursuant to Rule 4(d)(2) of the Federal Rules of Civil
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Procedure, unless otherwise ordered by the Court.
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(10)
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If Defendant agrees to waive service of the Summons and Complaint, he
must return the signed waiver forms to the United States Marshal, not the Plaintiff.
(11)
Defendant Vicklund must answer the Complaint or otherwise respond by
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appropriate motion within the time provided by the applicable provisions of Rule 12(a) of
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the Federal Rules of Civil Procedure.
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(12)
This matter is referred to Magistrate Judge Mark E. Aspey pursuant to Rules
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72.1 and 72.2 of the Local Rules of Civil Procedure for all pretrial proceedings as authorized
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under 28 U.S.C. § 636(b)(1).
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DATED this 14th day of April, 2011.
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