Maloney v. Ryan et al

Filing 23

ORDER (Service Packet) Count IV of the Second Amended Complaint is dismissed. The Clerk of Court must send Plaintiff a service packet for defendants Ryan, Linderman, and Mason. 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 Bridget S. Bade. Signed by Senior Judge Robert C Broomfield on 7/22/13. (TLJ)

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1 WO 2 3 4 5 6 7 IN THE UNITED STATES DISTRICT COURT 8 FOR THE DISTRICT OF ARIZONA 9 10 11 12 Erik Scott Maloney, 13 14 15 16 Plaintiff, vs. Charles L. Ryan, et al., Defendants. ) ) ) ) ) ) ) ) ) ) No. CV 13-00314-PHX-RCB(BSB) O R D E R 17 18 This matter is before the court on plaintiff pro se Erik 19 Scott Maloney’s second amended civil rights complaint (“SAC”) 20 pursuant to 42 U.S.C. § 1983 (Doc. 17). On June 28, 2013, 21 this court granted plaintiff leave to file that SAC. 22 (Doc. 13) at 6:17-19, ¶ (4). 23 requires, the following constitutes the court’s screening of 24 plaintiff’s SAC. 25 Ord. As 28 U.S.C. § 1915A(a) In screening the original complaint (Doc. 1), the court 26 dismissed without prejudice defendants Hetmer and Morris. 27 Doc. 5 at 7:8, ¶ (3). 28 of the Arizona Department of Corrections (“ADOC”) and Mike However, Charles L. Ryan, the Director 1 Linderman, ADOC’s Administrator of Pastoral Activities, were 2 ordered to answer counts I, II and III; 3 Chaplain at the Florence complex where plaintiff is housed, 4 was ordered to answer count II of that complaint. 5 7:9-10, ¶ (4). 6 process as to the original complaint, though no answer or 7 other response to that complaint have been filed. 8 14, 15 and 20. 9 I. 10 and Wayne Mason, a Id. at All three defendants have waived service of See Docs. Statutory Screening of Prisoner Complaints The court is required to screen complaints brought by 11 prisoners seeking relief against a governmental entity or an 12 officer or an employee of a governmental entity. 28 U.S.C. 13 § 1915A(a). The court must dismiss a complaint or portion 14 thereof if a plaintiff has raised claims that are legally 15 frivolous or malicious, that fail to state a claim upon which 16 relief may be granted, or that seek monetary relief from a 17 defendant who is immune from such relief. 28 U.S.C. 18 § 1915A(b)(1), (2). 19 A pleading must contain a “short and plain statement of 20 the claim showing that the pleader is entitled to relief.” 21 Fed. R. Civ. P. 8(a)(2) (emphasis added). 22 not demand detailed factual allegations, “it demands more 23 than an unadorned, the defendant-unlawfully-harmed-me 24 accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). 25 “Threadbare recitals of the elements of a cause of action, 26 supported by mere conclusory statements, do not suffice.” 27 Id. 28 accepted as true, to ‘state a claim to relief that is While Rule 8 does “[A] complaint must contain sufficient factual matter, -2- 1 plausible on its face.’” Id. (quoting Bell Atlantic Corp. v. 2 Twombly, 550 U.S. 544, 570 (2007)). A claim is plausible 3 “when the plaintiff pleads factual content that allows the 4 court to draw the reasonable inference that the defendant is 5 liable for the misconduct alleged.” 6 a complaint states a plausible claim for relief [is] . . . a 7 context-specific task that requires the reviewing court to 8 draw on its judicial experience and common sense.” 9 679. Thus, although a plaintiff’s specific factual Id. “Determining whether Id. at 10 allegations may be consistent with a constitutional claim, a 11 court must assess whether there are other “more likely 12 explanations” for a defendant’s conduct. 13 Id. at 681. But as the United States Court of Appeals for the Ninth 14 Circuit has instructed, courts must “continue to construe pro 15 se filings liberally.” 16 (9th 17 ‘must be held to less stringent standards than formal 18 pleadings drafted by lawyers.’” Id. (quoting Erickson v. 19 Pardus, 551 U.S. 89, 94 (2007) (per curiam)). 20 principles firmly in mind, the court will review the SAC in 21 accordance with 28 U.S.C. § 1955A(a). 22 II. 23 Hebbe v. Pliler, 627 F.3d 338, 342 Cir. 2010). A “complaint [filed by a pro se prisoner] With these Second Amended Complaint “[T]he general rule is that an amended complaint 24 supercedes the original complaint and renders it without 25 legal effect[.]” Lacey v. Maricopa Cnty., 693 F.3d 896, 927 26 (9th Cir. 2012) (en banc); see also Valadez–Lopez v. Chertoff, 27 656 F.3d 851, 857 (9th 28 citations omitted) (“[I]t is well-established that an amended Cir. 2011) (quotation marks and -3- 1 complaint supersedes the original, the latter being treated 2 thereafter as non-existent.”). 3 explained, plaintiff’s first amended complaint superseded his 4 original complaint. 5 now, the SAC supersedes the FAC so that the SAC becomes the 6 operative complaint. Thus, as previously See Ord. (Doc. 13) at 4:10 - 5:1. And 7 The first three counts in the SAC, all pertaining to 8 Ramadan, are virtually identical to the first three counts in 9 plaintiff’s original complaint. The only differences are 10 that in accordance with this court’s screening order, Lance 11 Hetmer and Stephen Morris are no longer named as defendants. 12 Likewise, the SAC omits all allegations pertaining to them. 13 Unlike the original complaint, however, the SAC includes a 14 fourth count, alleging a violation of the Religious Land Use 15 and Institutionalized Persons Act (“RLUIPA”), 42 U.S.C. 16 § 2000cc-1(a), against defendant Ryan. 17 count the plaintiff alleges that defendant Ryan violated his 18 religious exercise rights by implementing a policy which 19 limits the amount of books, including religious books, 20 available to him at any one time. 21 III. 22 Basically, in that Failure to State a Claim An inmate may bring a claim for violation of his 23 religious exercise rights under RLUIPA. 24 government from imposing a substantial burden on the 25 religious exercise of an institutionalized person unless the 26 government establishes that the burden furthers a “compelling 27 governmental interest” and does so by “the least restrictive 28 means.” RLUIPA prohibits the 42 U.S.C. § 2000cc-1(a)(1) - (2). -4- “While [RLUIPA] 1 adopts a ‘compelling governmental interest’ standard, 2 [c]ontext matters in the application of that standard.” 3 Hartmann v. Cal. Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124 4 (9th Cir. 2013) (citing Cutter v. Wilkinson, 544 U.S. 709, 5 722–23, 125 S.Ct. 2113, 161 L.Ed.2d 1020 (2005)) (other 6 citations and internal quotations marks omitted). 7 An inmate claiming a RLUIPA violation “must allege facts 8 plausibly showing that the challenged policy and the 9 practices it engenders impose a substantial burden on the 10 exercise of their religious beliefs.” 11 Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005). 12 RLUIPA does not define ‘substantial burden[,]’ but th[e] 13 [Ninth Circuit] has held that ‘a substantial burden on 14 ‘religious exercise must impose a significantly great 15 restriction or onus upon such exercise.” 16 (quoting San Jose Christian Coll. v. City of Morgan Hill, 360 17 F.3d 1024, 1034 (9th Cir. 2004)). 18 burden must be more than a mere inconvenience, and must 19 prevent the plaintiff from engaging in [religious] conduct or 20 having a religious experience[.]” Navajo Nation v. United 21 States Forest Serv., 479 F.3d 1024, 1033 (9th Cir. 2007) 22 (internal quotations and citations omitted), overruled on 23 other grounds by 535 F.3d 1058 (9th Cir. 2008) (en banc). 24 Id. at 1125 (citing Id. at 1124-25 In other words, “[t]he “In the context of a prisoner’s constitutional challenge 25 to institutional policies, th[e] [Ninth Circuit] has held 26 that a substantial burden occurs ‘where the state . . . 27 denies [an important benefit] because of conduct mandated by 28 religious belief, thereby putting substantial pressure on an -5- 1 adherent to modify his behavior and to violate his belief.’” 2 Hartmann, 707 F.3d at 1125 (quoting Warsoldier, 418 F.3d at 3 995 (alteration in original) (quotation omitted)). 4 “[p]risoners pursuing a RLUIPA claim must plead ‘factual 5 allegations showing their religious exercise was so burdened 6 as to pressure them to abandon their beliefs.’” Hill v. 7 Wamble-Fisher, 2013 WL 3223631, at *4 (D.Idaho March 25, 8 2013) (quoting Hartmann, 707 F.3d at 1125). 9 then on the government to prove that the substantial burden Thus, The burden is 10 on the inmate’s religious practice both furthers a compelling 11 governmental interest and is the least restrictive means of 12 doing so. 13 Warsoldier, 418 F.3d at 995. “By its terms, RLUIPA is to be construed broadly in favor 14 of protecting an inmate’s right to exercise his religious 15 beliefs.” 16 prison’s accommodation of religious observances should not be 17 elevated over an institution’s need to maintain order and 18 safety.” 19 2012) (internal quotation marks and citations omitted). 20 Id. (citation omitted). “Nonetheless, [a] Davis v. Powell, 901 F.Supp.2d 1196, 1230 (S.D.Cal. In count IV, plaintiff alleges a violation of RLUIPA 21 against defendant Ryan only. 22 he is seeking to exercise his religion by engaging in 23 “Dawwah[,]” which, among other things, “requires a Muslim 24 practitioner 25 and teach it to others by either proselytizing or . . . Plaintiff Maloney alleges that to obtain knowledge of the religion of Islam 26 27 28 -6- SAC (Doc. 17) at 13:4-61; and 13:13-14. 1 studying with” them. 2 The plaintiff also alleges that as part of Dawwah, the Qur’an 3 requires “one” to “back up his words/teaching with proof and 4 evidence” in the form of “relivent [sic] text or book . . . 5 to establish truthfulness and accuracy of the information.” 6 Id. at ¶ 3. 7 On January 30, 2013, defendant Ryan allegedly violated 8 RLUIPA by rescinding a “policy . . . which allowed for an 9 unlimited number of books provided they fit into a property 10 box[,]” and implemented another policy limiting the number of 11 books readily accessible to inmates. 12 (emphasis added). 13 allegedly “set a limit on books at ten . . . to include 14 religious books, and a limit on property boxes at Four[,] 15 . . . forc[ing] Plaintiff to store the remainder of his 16 books[.]” 17 plaintiff “must submit a written request to exchange books, 18 then wait over a week until the property officer” provides 19 the requested books. 20 Id. at 13:16-14:1 More specifically, defendant Ryan Id. at 14:2-4. To retrieve those stored books, Id. at 14:5-7. Allegedly, this book “policy inhibits” the plaintiff in 21 two ways. 22 ability to teach” in that he does not “have the necessary 23 proof and evidence on hand” to engage in Dawwah. 24 9. 25 ability to retain the knowledge necessary to teach and Id. at 14:8 and 11. First, it “inhibits [his] Id. at 14:8- Second, allegedly, this policy “inhibits [plaintiff’s] 26 1 27 28 The page number references to plaintiff’s SAC, (Doc. 17), are to the page numbers generated by the District Court’s electronic filing system, not the pre-printed page numbers on the complaint form or those hand-written by the plaintiff. -7- 1 proselytize[.]” Id. at 14:11-12. 2 As the court construes count IV, under the current policy 3 up to four property boxes, each containing no more than ten 4 books, i.e., a maximum of 40 books, religious or otherwise, 5 are 6 books are kept in storage and available, although not 7 immediately, upon request. 8 disposal on an ongoing basis, at the very least, ten religious 9 books, and perhaps up to as many as 40. readily available to an inmate on any given day. Other Plaintiff Maloney thus has at his Indeed, as plaintiff 10 alleges, presently, on any given day, “on average” he uses 11 “anywhere from 3 to 5 different books[.]” Id. at 14:13-14. 12 Count IV does not state a RLUIPA claim that is plausible 13 on its face because plaintiff Maloney has not pled an 14 essential element of such a claim. 15 not sufficiently alleged that defendant Ryan’s claimed policy 16 of limiting books, religious and otherwise, has substantially 17 burdened the exercise of his religion. 18 availability of a number of plaintiff’s religious books, and 19 the facility’s retrieval process for others, plainly the 20 alleged book policy does not “impose a significantly great 21 restriction or onus upon [the] exercise” of plaintiff’s 22 religion. 23 marks and citation omitted); see also Callaway v. Frink, 2013 24 WL 1856524, at *5 (D.Mont. April 3, 2013), adopted, 2013 WL 25 1856471 (D.Mont. May 2, 2013) (citation omitted) (Plaintiff’s 26 “desire for more Odinist books does not establish a RLUIPA 27 violation.”) 28 allegations explaining how or why having to wait over a week Namely, the plaintiff has Given the ready See Hartmann, 707 F.3d at 1125 (internal quotation This is all the more so given the lack of -8- 1 to be provided with additional requested religious books has 2 put “significant pressure” on plaintiff Maloney to “abandon 3 [his] religious beliefs.” 4 nothing in the SAC from which it can be reasonably inferred 5 that defendant Ryan’s purported book policy is “oppressive[;]” 6 or that it burdens plaintiff Maloney “to a ‘significantly 7 great extent,’ so as to make the religious practice 8 ‘effectively impracticable.’” See Davis, 901 F.Supp. at 1230 9 (quoting San Jose Christian Coll., 360 F.3d at 1034-35). See id. Additionally, there is 10 Rather, evidently plaintiff Maloney is “seek[ing] additional 11 religious accommodations beyond those already provided by the 12 prison to facilitate the religious exercise 13 faith.” 14 additional religious accommodations does not, however, amount 15 to a substantial burden for RLUIPA purposes. 16 1125. Hartmann, 707 F.3d at 1125. of [his] . . . Failure to provide See id. at 17 Count IV does baldly allege that the book “policy has 18 substantially burdened the religious exercise of Dawwah by 19 putting pressure on plaintiff to modify his behavior 20 substantially and to violate his beliefs.” SAC (Doc. 17) at 21 14:15-17. This bald assertion does not overcome the pleading 22 deficiencies just outlined, however, in that the court cannot 23 reasonably infer from that allegation, unsupported by factual 24 content, that defendant Ryan has violated RLUIPA. 25 Twombly, 550 U.S. at 570. 26 allegation is precisely the sort of “[t]hreadbare recital” of 27 an element of a cause of action[,]” which the Supreme Court 28 has found does not satisfy Rule 8's pleading requirements. See Indeed, that broad, conclusory -9- 1 See Iqbal, 556 U.S. at 678. 2 In sum, because count IV does not allege a plausible 3 RLUIPA claim against defendant Ryan, count IV will be 4 dismissed. 5 IV. Claims for Which an Answer Will be Required 6 As previously stated, counts I, II, and III are identical 7 in all relevant ways to counts I, II, and III of the SAC. 8 Therefore, for the reasons set forth in this court’s prior 9 screening order, defendants Ryan and Linderman must answer 10 counts I, II, and III of the SAC and defendant Mason must 11 answer count II of the SAC. See Doc. 5 at 3-6. Accordingly, 12 the court will order service of the SAC (Doc. 17) upon 13 defendants Ryan, Linderman and Mason. 14 V. Warnings 15 A. Address Changes 16 Plaintiff must file and serve a notice of a change of 17 address in accordance with Rule 83.3(d) of the Local Rules of 18 Civil Procedure. Plaintiff must not include a motion for other 19 relief with a notice of change of address. Failure to comply 20 may result in dismissal of this action. 21 B. Copies 22 Plaintiff must serve defendants, or counsel if an 23 appearance has been entered, a copy of every document that he 24 files. Fed. R. Civ. P. 5(a). Each filing must include a 25 certificate stating that a copy of the filing was served. Fed. 26 R. Civ. P. 5(d). Also, plaintiff must submit an additional 27 copy of every filing for use by the court. See LRCiv 5.4. 28 Failure to comply may result in the filing being stricken - 10 - 1 without further notice to plaintiff. 2 C. Possible Dismissal 3 If plaintiff fails to timely comply with every provision 4 of this Order, including these warnings, the court may dismiss 5 this action without further notice. See Ferdik v. Bonzelet, 6 963 F.2d 1258, 1260-61 (9th Cir. 1992) (a district court may 7 dismiss an action for failure to comply with any order of the 8 Court). 9 10 E. No Further Amendments Without Leave of Court Rule 15(a) of the Federal Rules of Civil Procedure allows 11 a party to amend his pleading "once as a matter of course at 12 any time before a responsive pleading is served . . ." 13 Because plaintiff has now amended his complaint more than 14 once, he may not file another amended complaint without first 15 seeking permission from the court. 16 IT IS ORDERED as follows: 17 (1) Count IV of the Second Amended Complaint is dismissed. 18 (2) Defendant Ryan must answer counts I, II, and III of 19 the Second Amended Complaint. 20 (3) Defendant Linderman must answer counts I, II, and III 21 of the Second Amended Complaint. 22 (4) Defendant Mason must answer count II of the Second 23 Amended Complaint. 24 (5) The Clerk of Court must send Plaintiff a service 25 packet including the Second Amended Complaint (Doc. 17), this 26 Order, and both summons and request for waiver forms for 27 defendants Ryan, Linderman, and Mason. 28 . . . - 11 - 1 (6) Plaintiff must complete2 and return the service packet 2 to the Clerk of Court within 21 days of the date of filing of 3 this Order. The United States Marshal will not provide service 4 of process if Plaintiff fails to comply with this Order. 5 (7) If Plaintiff does not either obtain a waiver of 6 service of the summons or complete service of the Summons and 7 Second Amended Complaint on a defendant within 120 days of the 8 filing of the Second Amended Complaint or within 60 days of 9 the filing of this Order, whichever is later, the action may 10 be dismissed as to each Defendant not served. Fed. R. Civ. P. 11 4(m); LRCiv 16.2(b)(2)(B)(i). 12 (8) The United States Marshal must retain the Summons, a 13 copy of the Second Amended Complaint, and a copy of this Order 14 for future use. 15 (9) The United States Marshal must notify defendants of 16 the commencement of this action and request waiver of service 17 of the summons pursuant to Rule 4(d) of the Federal Rules of 18 Civil Procedure. The notice to defendants must include a copy 19 of this Order. The Marshal must immediately file signed 20 waivers of service of the summons. If a waiver of service of 21 summons is returned as undeliverable or is not returned by a 22 defendant within 30 days from the date the request for waiver 23 was sent by the Marshal, the Marshal must: 24 (a) personally serve copies of the Summons, 25 26 27 28 2 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. - 12 - 1 Complaint, and this Order upon Defendant pursuant to Rule 2 4(e)(2) of the Federal Rules of Civil Procedure; and 3 (b) within 10 days after personal service is 4 effected, file the return of service for Defendant, along with 5 evidence of the attempt to secure a waiver of service of the 6 summons and of the costs subsequently incurred in effecting 7 service upon Defendant. The costs of service must be 8 enumerated on the return of service form (USM-285) and must 9 include the costs incurred by the Marshal for photocopying 10 additional copies of the Summons, Complaint, or this Order and 11 for preparing new process receipt and return forms (USM-285), 12 if required. Costs of service will be taxed against the 13 personally served Defendant pursuant to Rule 4(d)(2) of the 14 Federal Rules of Civil Procedure, unless otherwise ordered by 15 the Court. 16 (10) A defendant who agrees to waive service of the 17 Summons and Complaint must return the signed waiver forms to 18 the United States Marshal, not the Plaintiff. 19 (11) Defendants must answer the Second Amended Complaint 20 or otherwise respond by appropriate motion within the time 21 provided by the applicable provisions of Rule 12(a) of the 22 Federal Rules of Civil Procedure. 23 (12) Any answer or response must state the specific 24 defendant by name on whose behalf it is filed. The Court may 25 strike any answer, response, or other motion or paper that 26 does not identify the specific Defendant by name on whose 27 behalf it is filed. 28 (13) This matter is referred to Magistrate Judge Bridget - 13 - 1 S. Bade pursuant to Rules 72.1 and 72.2 of the Local Rules of 2 Civil Procedure for all pretrial proceedings as authorized 3 under 28 U.S.C. § 636(b)(1). 4 DATED this 22nd day of July, 2013. 5 6 7 8 9 10 11 12 Copies to counsel of record and plaintiff pro se 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 14 -

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