Mootry v. Flores et al
Filing
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FINDINGS and RECOMMENDATIONS recommending that Certain Claims and Defendants be DISMISSED re 60 Second Amended Prisoner Civil Rights Complaint, signed by Magistrate Judge Barbara A. McAuliffe on 5/15/2012. Referred to Judge O'Neill. Objections to F&R due within thirty (30) days. (Jessen, A)
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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL MOOTRY,
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Plaintiff,
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CASE NO. 1:09-cv-01252-LJO-BAM PC
FINDINGS AND RECOMMENDATIONS
RECOMMENDING DISMISSING CERTAIN
CLAIMS AND DEFENDANTS
v.
E. G. FLORES, et al.,
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(ECF No. 60)
Defendants.
OBJECTIONS DUE WITHIN THIRTY DAYS
/
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I.
Screening Requirement
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Plaintiff Michael Mootry (“Plaintiff”) is a state prisoner proceeding pro se and in forma
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pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. On December 20, 2011, an order
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issued adopting findings and recommendations, granting Defendants’ motion to dismiss, and
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granting Plaintiff thirty days in which to file a second amended complaint. (ECF No. 50.) Following
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the grant of several motions for an extension of time, Plaintiff filed a second amended complaint on
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May 1, 2012. (ECF No. 60.)
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The Court is required to screen complaints brought by prisoners seeking relief against a
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governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The
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Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally
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“frivolous or malicious,” that “fails to state a claim on which relief may be granted,” or that “seeks
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monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B).
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A complaint must contain “a short and plain statement of the claim showing that the pleader
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is entitled to relief. . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are not required, but
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“[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 1949 (2009) (citing Bell
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Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955, 1964-65 (2007)).
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Prisoners proceeding pro se in civil rights actions are still entitled to have their pleadings
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liberally construed and to have any doubt resolved in their favor, but the pleading standard is now
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higher, Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (citations omitted), and to survive
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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to
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allow the Court to reasonably infer that each named defendant is liable for the misconduct alleged,
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Iqbal, 556 U.S. at , 129 S. Ct. at 1949-50; Moss v. U.S. Secret Service, 572 F.3d 962, 969 (9th Cir.
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2009). The “sheer possibility that a has defendant acted unlawfully” is not sufficient, and “facts that
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are ‘merely consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard.
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Iqbal, 556 U.S. at 678, 129 S.Ct. at 1949; Moss, 572 F.3d at 969.
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Further, under section 1983, Plaintiff must demonstrate that each defendant personally
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participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930, 934 (9th Cir. 2002).
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Although a court must accept as true all factual allegations contained in a complaint, a court need
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not accept a plaintiff’s legal conclusions as true. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949.
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“Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements,
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do not suffice.” Id. (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955).
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II.
Second Amended Complaint Allegations
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Plaintiff is in the custody of the California Department of Corrections and Rehabilitation and
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is incarcerated at California State Prison, Los Angeles County. Plaintiff’s claims in this action arose
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out of his confinement at Kern Valley Staet Prison from June 2006 though July 2010.
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Plaintiff alleges after a prison chaplain was let go for discriminatory and retaliatory purposes,
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Muslim inmates were without a chaplain from October 2007 through April 2009. (Sec. Am. Compl.
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3, ECF No. 60.) In December 2007, Defendant Hedgpeth enforced a Department of Operations
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policy that did not allow Muslim inmates to purchase or possess prayer oil and forbade inmate
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ministers from leading inmate religious services without a chaplain or volunteer. (Id. at 3-4.) These
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policies, which were implemented and enforced by Defendants Hedgpeth and Flores officially
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abolished Jumu’ah prayer services in March 2008. Plaintiff filed an administrative appeal regarding
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the denial of Jumu’ah services and a Muslim chaplain or inmate minister on March 28, 2008. (Id.
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at 4.)
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Plaintiff’s appeal was improperly screened out several times by Defendant Billings as a
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request for an interview. (Id. at 4-5.) After prison officials were ordered to let his appeal proceed,
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Defendant Tarnoff ordered Plaintiff to resubmit his request on an inmate appeal form. On
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September 23, 2008, Defendant Wegman interviewed Plaintiff for the appeal and Defendant Cabrera
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was present. Defendant Wegman partially granted Plaintiff’s appeal stating that Jumu’ah services
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are scheduled on Fridays at noon. (Id. at 6.)
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Plaintiff responded that Jumu’ah services were not being conducted and Defendant Wegman
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did not address the issue of an inmate minister being allowed to conduct Jumu’ah services. (Id. at
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6-7.) Defendant Lewis partially granted Plaintiff, appeal and informed Plaintiff that the prison only
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had a Jewish Rabbi, who did not work on Fridays due to his religious beliefs, that sometimes
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volunteers are available, and when it is determined that a chaplain cannot be obtained the prison will
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accommodate Plaintiff’s religious needs. (Id. at 7.) Plaintiff’s Director’s Level appeal was denied
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stating that a Muslim chaplain should be hired in the near future, and the individuals that had been
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volunteering had discontinued for personal reasons. (Id. 8.)
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Plaintiff alleges that Defendant Billings failed to process his administrative appeals for
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pretextual reasons in violation of the First Amendment. (Id. at 9-10.) Defendants Hegpeth, Flores,
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Wegman, Lewis, and Cabrera violated his rights under the Free Exercise Clause of the First
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Amendment by denying him access to Jumu’ah prayer services and a Muslim chaplain or inmate
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ministers. (Id. at 11-12.) Defendant Cabrera maintained an underground anti-Muslim policy
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because he would refuse to sign the sheet to allow Muslim inmates to the be released to attend
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Jumu’ah or Ta’aleem services and allowed officers under his authority to delay releasing Muslim
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inmates for services. (Id. at 14.) Instead of searching Muslim inmates when they exited their cells,
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Defendant Cabrera and other officers would sit around drinking soda and would ignore the inmates.
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On occasion, Defendant Cabrera would forbid Muslim services from being conducted, sometimes
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because the guards were celebrating a birthday or other event. (Id. at 15.)
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Defendant Wegman did not address Plaintiff’s grievance that the Jewish Rabbi did not work
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on Fridays, and therefore Jumu’ah services were not being conducted. (Id. at 17.) Defendant Lewis
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responded to Plaintiff’s inmate appeal and failed to grant a reasonable accommodation when he had
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the authority to do so. (Id. at 20.)
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Defendants Hegdpeth, Flores, Wegman, Lewis, and Cabrera violated Plaintiff’s right to equal
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protection under the Fourteenth Amendment by failing to hire a Muslim Chaplain for well over a
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year. The Muslim inmates were not allowed to be lead by an inmate chaplain, while the Men’s
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Advisory Counsel was allowed to be lead by inmate representatives. (Id. at 25.) Members of other
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faiths had access to chaplains, but Muslim inmates were denied this right because they were not
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allowed to have inmate chaplains. (Id. at 25.)
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For the reasons set forth below, Plaintiff’s second amended complaint states a claim against
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Defendants Hedgpeth, Flores, Wegman, Lewis, and Cabrera for violations of the Free Exercise
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Clause of the First Amendment, but fails to state any other claims for relief under section 1983.
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III.
Discussion
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A.
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Plaintiff alleges that Defendant Billings violated his right to file administrative grievances
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and redress the court under the First Amendment. Inmates have a fundamental constitutional right
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of access to the courts. Lewis v. Casey, 518 U.S. 343, 346 (1996). The right is merely the right to
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bring to court a grievance the inmate wishes to present, and is limited to direct criminal appeals,
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habeas petitions, and civil rights actions. Lewis, 518 U.S. at 354. To bring a claim, the plaintiff
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must have suffered an actual injury by being shut out of court. Christopher v. Harbury, 536 U.S.
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403, 415 (2002); Lewis, 518 U.S. at 351.
Access to Courts
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Plaintiff may not pursue a claim for denial of access to the courts based on the failure of staff
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to respond to his appeals or based on the rejection of his appeals by staff. Plaintiff does not have a
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constitutionally protected right to have his appeals accepted or processed, Ramirez v. Galaza, 334
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F.3d 850, 860 (9th Cir. 2003); Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988), and because
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Plaintiff has not alleged any facts demonstrating that he suffered an actual injury to qualifying
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litigation, his claim fails as a matter of law. Christopher, 536 U.S. at 415; Lewis, 518 U.S. at 351.
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Plaintiff fails to state a claim against Defendant Billings for violating his right of access under the
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First Amendment.
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B.
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“Prison walls do not form a barrier separating prison inmates from the protections of the
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Constitution.” Turner v. Safley, 482 U.S. 78, 84 (1987). Nevertheless, prisoners’ constitutional
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rights are subject to substantial limitations and restrictions in order to allow prison officials to
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achieve legitimate correctional goals and maintain institutional security. O’Lone v. Estate of
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Shabazz, 482 U.S. 342, 348 (1987); Bell v. Wolfish, 441 U.S. 529, 546-47 (1979).
Free Exercise1
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“Inmates . . . retain protections afforded by the First Amendment, including its directive that
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no law shall prohibit the free exercise of religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348
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(1987) (internal quotations and citations omitted). The protections of the Free Exercise Clause are
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triggered when prison officials substantially burden the practice of an inmate’s religion by preventing
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him from engaging in conduct which he sincerely believes is consistent with his faith. Shakur v.
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Schriro, 514 F.3d 878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.
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1997), overruled in part by Shakur, 514 F.3d at 884-85.
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Plaintiff fails to state a claim based upon the denial of prayer oil. While Plaintiff claims that
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Muslim inmates were not allowed to purchase and possess prayer oil, he fails to allege that
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possessing prayer oil was a sincerely held belief consistent with his faith.
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Prison officials do not need to provide an inmate with a chaplain of his faith, but need only
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provide inmates with a reasonable opportunity to worship in accord with their sincerely held beliefs.
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See McCollum v. California Dep’t of Corrections and Rehabilitation, 647 F.3d 870, 879 (9th Cir.
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2011) (quoting Cruz v. Beto, 405 U.S. 319, 322 n.2, 92 S. Ct. 1079 (1972)) (“[A] chaplain, priest,
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or minister is not required to be provided without regard to the extent of the demand. But reasonable
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opportunities must be afforded to all prisoners to exercise the religious freedom guaranteed by the
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First and Fourteenth Amendment without fear of penalty”); Johnson v. Moore, 948 F.2d 517, 520
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(9th Cir. 1991) (“[T]he constitution does not necessarily require prisons to provide each inmate with
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In his first amended complaint, Plaintiff argues the Turner factors as they would apply to this action. At
the pleading stage, the issue is whether Plaintiff has stated a claim and Plaintiff’s legal argument is disregarded.
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the spiritual counselor of his choice”); Ward v. Walsh, 1 F.3d 873, 880 (9th Cir. 1993) (prison
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officials are under no obligation to provide each inmate with a spiritual counselor of his choice).
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The Ninth Circuit has upheld regulations that ban inmate lead religious activity. See Anderson v.
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Angelone, 123 F.3d 1197, 1198-99 (9th Cir. 1997) (ban on inmate ministers is reasonably related
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to legitimate security concerns); Jones v. Bradley, 590 F.2d 294, 295 (9th Cir. 1979) (requiring
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prison chaplain or outside sponsor for inmate led meetings in chapel did not deny inmate reasonable
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opportunity to pursue his faith); Allen v. Toombs, 827 F.2d 563, 569 (9th Cir. 1987) (policy that
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provides for outside religious leaders to enter prison to address religious needs of inmates provides
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a reasonable opportunity for inmates to exercise their faith). Accordingly, Plaintiff’s claim for denial
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of free exercise is based upon the alleged result of the failure to provide a Muslim or inmate
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chaplain, the denial of Jumu’ah services which Plaintiff alleges interfered with his ability to exercise
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a sincerely held religious belief.
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1.
Defendants Hedgpeth and Flores
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Plaintiff’s claim that Defendants Hedgpeth and Flores implemented and enforced policies
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that abolished Jumu’ah prayer services states a cognizable claim for violation of the Free Exercise
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Clause of the First Amendment.
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2.
Defendant Tarnoff
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Plaintiff’s allegation that, after his appeal was determined to be improperly screened out,
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Defendant Tarnoff ordered Plaintiff to resubmit the appeal on a new 602 form fails to state a
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cognizable claim. Plaintiff fails to allege any facts to support a claim that Defendant Tarnoff
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personally participated in the deprivation of his constitutional rights merely by informing Plaintiff
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that he needed to resubmit his inmate appeal. Jones, 297 F.3d at 934.
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3.
Defendant Wegman
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Plaintiff’s claims that Defendant Wegman partially granted his grievance, while failing to
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address that Muslim inmates were being denied Jumu’ah prayer services is sufficient to state a claim
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for a violation of the Free Exercise Clause of the Eighth Amendment.
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4.
Defendant Lewis
Plaintiff’s allegation that Defendant Lewis partially granted Plaintiff’s appeal, was aware that
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Muslim inmates were being denied access to Jumu’ah services, and failed to act to correct the
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violation while having the authority to do so states a cognizable claim for a violation of the Free
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Exercise Clause of the First Amendment.
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5.
Defendant Cabrera
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Plaintiff’s claim that officers under Defendant Cabrera’s authority would delay releasing
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Muslim inmates for services fails to state a cognizable claim. Government officials may not be held
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liable for the actions of their subordinates under a theory of respondeat superior. Iqbal, 129 S. Ct.
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at 1948. Since a government official cannot be held liable under a theory of vicarious liability for
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section 1983 actions, Plaintiff must plead that the official has violated the Constitution through his
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own individual actions. Id. at 1948.
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Plaintiff’s allegations that Defendant Cabrera would refuse to sign the sheet to allow inmates
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to be released to attend services, would intentionally refuse to search inmates so they could go into
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the chapel, and would cancel Jumu’ah services for no reason are sufficient to state a cognizable
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claim for violation of the Free Exercise Clause of the First Amendment.
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C.
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Plaintiff alleges that his equal protection rights were violated by the failure to provide a
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chaplain or inmate ministers to Muslim inmates. The Equal Protection Clause requires that all
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persons who are similarly situated should be treated alike. Lee v. City of Los Angeles, 250 F.3d 668,
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686 (2001); City of Cleburne v. Cleburne Living Center, 473 U.S. 432, 439 (1985). An equal
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protection claim may be established by showing that the defendant intentionally discriminated
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against the plaintiff based on the plaintiff’s membership in a protected class, Lee, 250 F.3d at 686;
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Barren v. Harrington, 152 F.3d 1193, 1194 (1998), or that similarly situated individuals were
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intentionally treated differently without a rational relationship to a legitimate state purpose,
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Thornton v. City of St. Helens, 425 F.3d 1158, 1167 (2005); Village of Willowbrook v. Olech, 528
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U.S. 562, 564 (2000).
Equal Protection
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Plaintiff claims that the policy refusing to allow inmate ministers was discriminatory because
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the Men’s Advisory Counsel, a civil group, continued to be led by inmate representatives that were
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appointed by the whole class of inmates. However, as Plaintiff was previously advised, Muslim
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inmates are not similarly situated to all inmates at the prison, nor is the Men’s Advisory Counsel
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similarly situated to Muslim inmates. Plaintiff cannot state an equal protection claim based on the
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failure to allow an inmate minister for Muslim inmates because the Men’s Advisory Counsel was
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led by inmate representatives.
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Plaintiff states that his equal protection rights were violated because members of other faiths
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had access to chaplains, but Plaintiff was denied access based upon the policies and actions of the
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defendants. It is somewhat unclear what access Plaintiff is alleging was granted to other religious
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groups that was denied to Plaintiff. While Plaintiff’s complaint is to be liberally construed, the Court
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is not required to accept as true allegations that contradict exhibits attached to the complaint or
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matters properly subject to judicial notice, or allegations that are merely conclusory, unwarranted
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deductions of fact, or unreasonable inferences. Daniels-Hall v. National Educ. Ass'n, 629 F.3d 992
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(9th Cir. 2010).
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According to the complaint, during the time period in question, there was only a single
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Jewish chaplain hired by the prison. While Plaintiff claims to have been treated differently than
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other religious groups, the Jewish inmates were the only inmates who were provided with a paid
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chaplain of their faith. Muslim inmates were not treated differently than religions other then those
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of the Jewish faith.
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Plaintiff also complains that Muslim inmates were denied an inmate chaplain. The policy
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states that “no inmate will be allowed to conduct or lead any religious services, classes or groups of
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any kind in the facility chapels, without being under the direct supervision of a facility chaplain or
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authorized volunteer.” (Sec. Am. Compl. 31, ECF No. 60.) Plaintiff fails to allege that religions,
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other than Muslims, were allowed to be led by inmate chaplains.
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Finally, it is clear from the complaint that volunteers were allowed to lead services, however
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the Muslim volunteers had stopped volunteering due to personal reasons. Plaintiff fails to allege that
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the lack of volunteers to lead Muslim services was due to the actions of any named defendant.
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Plaintiff fails to set forth factual allegations to state a cognizable claim that Muslim inmates were
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denied equal protection.
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IV.
Conclusion and Recommendation
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The Court finds that Plaintiff’s second amended complaint states a claim against Defendants
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Hedgpeth, Flores, Wegman, Lewis, and Cabrera for violations of the Free Exercise Clause of the
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First Amendment, but fails to state any other claims for relief under section 1983. Because Plaintiff
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has previously been notified of the deficiencies and given leave to amend, the Court recommends
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that the non-cognizable claims be dismissed, with prejudice. Noll v. Carlson, 809 F.2d 1446, 1448-
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49 (9th Cir. 1987). Based on the foregoing, it is HEREBY RECOMMENDED that:
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1.
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Defendants Hedgpeth, Flores, Wegman, Lewis, and Cabrera for violations of the Free
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Exercise Clause of the First Amendment for the denial of Jumu’ah services;
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This action proceed on the second amended complaint, filed May 1, 2012, against
Defendants Billings and Tarnoff be dismissed from this action, with prejudice, for
Plaintiff’s failure to state a claim under section 1983;
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Plaintiff’s claims based upon denial of prayer oil and the failure to provide a Muslim
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chaplain or inmate chaplain be dismissed, with prejudice, based upon Plaintiff’s
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failure to state a claim under section 1983; and
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4.
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Plaintiff’s access to the court and equal protection claims be dismissed, with
prejudice, for Plaintiff’s failure to state a claim.
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These findings and recommendations will be submitted to the United States District Judge
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assigned to the case, pursuant to the provisions of Title 28 U.S.C. § 636(b)(l). Within thirty (30)
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days after being served with these findings and recommendations, Plaintiff may file written
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objections with the Court. The document should be captioned “Objections to Magistrate Judge’s
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Findings and Recommendations.” Plaintiff is advised that failure to file objections within the
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specified time may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d
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1153 (9th Cir. 1991).
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IT IS SO ORDERED.
Dated:
10c20k
May 15, 2012
/s/ Barbara A. McAuliffe
UNITED STATES MAGISTRATE JUDGE
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