Garrett v. Myers et al

Filing 17

ORDER DISMISSING 15 Amended Complaint WITH LEAVE TO AMEND ; Third Amended Complaint Due within Thirty Days signed by Magistrate Judge Gerald B. Cohn on 5/25/2011. Third Amended Complaint due by 6/28/2011. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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JAMES “JAMIL” GARRET,

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Plaintiff,
v.

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T. BILLINGS, et al.,

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CASE NO.

1:10-cv-00779-GBC (PC)

AMENDED COMPLAINT DISMISSED WITH
LEAVE TO AMEND
(ECF No. 15)

Defendants.

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THIRD AMENDED COMPLAINT DUE
/ WITHIN THIRTY DAYS

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SCREENING ORDER

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I.

PROCEDURAL HISTORY
Plaintiff James “Jamil” Garrett (“Plaintiff”) is an inmate in the custody of the

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California Department of Corrections and Rehabilitation, and is proceeding pro se and in
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forma pauperis in this civil rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed this

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action on May 3, 2010 and consented to Magistrate Judge jurisdiction on May 12, 2010.

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(ECF Nos. 1 & 7.) Plaintiff then filed a First Amended Complaint on January 4, 2011,

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which was dismissed for failure to state a claim. (ECF Nos. 9 & 12.) No other parties have

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appeared.

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Plaintiff filed his Second Amended Complaint May 20, 2011. (ECF No. 15.) This

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Second Amended Complaint is now before the Court for screening. For the reasons set

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forth below, the Court finds that Plaintiff has failed to state a claim upon which relief may

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be granted.
II.

SCREENING REQUIREMENTS

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or officer or 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 the prisoner has

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raised claims that are legally “frivolous or malicious,” that fail to state a claim upon which

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relief may be granted, or that seek monetary relief from a defendant who is immune from

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such relief. 28 U.S.C. § 1915A(b)(1), (2). “Notwithstanding any filing fee, or any portion

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thereof, that may have been paid, the court shall dismiss the case at any time if the court

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determines that . . . the action or appeal . . . fails to state a claim upon which relief may be

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granted.” 28 U.S.C. § 1915(e)(2)(B)(ii).

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A complaint 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). Detailed factual allegations are

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not required, but “[t]hreadbare recitals of the elements of a cause of action, supported by

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mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949

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(2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). Plaintiff must set

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forth “sufficient factual matter, accepted as true, to ‘state a claim that is plausible on its

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face.’” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 555). While factual

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allegations are accepted as true, legal conclusions are not. Iqbal, 129 S.Ct. at 1949.
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III.

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SUMMARY OF COMPLAINT
Plaintiff alleges violations of the First Amendment and the Religious Land Use and

Institutionalized Persons Act of 2000 (“RLUIPA”). Plaintiff names the following individuals

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as Defendants: T. Billings, Lt. Myers, California Department of Corrections, and Mr.
McGhee.

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Plaintiff alleges as follows: Plaintiff states that the Muslim community, himself

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included, was denied access to the multipurpose chapel. Plaintiff states that he was also

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denied four ounces of oil for use in his religion.

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Plaintiff seeks a Court order requiring the California Department of Corrections hire

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a Muslim chaplain and allowing the Muslim community regular access to the multipurpose

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chapel.

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IV.

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ANALYSIS
The Civil Rights Act under which this action was filed provides:

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Every person who, under color of [state law] . . . subjects, or
causes to be subjected, any citizen of the United States . . . to
the deprivation of any rights, privileges, or immunities secured
by the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

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42 U.S.C. § 1983. “Section 1983 . . . creates a cause of action for violations of the federal

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Constitution and laws.” Sweaney v. Ada County, Idaho, 119 F.3d 1385, 1391 (9th Cir.
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1997) (internal quotations omitted).

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A.

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Plaintiff alleges violations of his religious exercise rights under both the First

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Religious Claims

Amendment and RLUIPA.

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An institutionalized person may bring a claim for violation of his religious rights under
the RLUIPA, 42 U.S.C. §§ 2000cc–2000cc–5, and/or the First Amendment.
To state a First Amendment free exercise claim, a plaintiff must allege that a

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defendant substantially burdened his religious practice without a justification

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reasonably-related to legitimate penological interests. Shakur v. Schriro, 514 F.3d 878,

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884 (9th Cir. 2008); Warsoldier v. Woodford, 418 F.3d 989, 995 (9th Cir. 2005) (citing

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Thomas v. Review Bd. of the Ind. Employment Sec. Div., 450 U.S. 707, 717–18 (1981)

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(pressure on exercise must be substantial)); Malik v. Brown, 16 F.3d 330, 333 (9th Cir.

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1994); Canell v. Lightner, 143 F.3d 1210, 1215 (9th Cir. 1998). “In order to reach the level

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of a constitutional violation, the interference with one’s practice of religion must be more

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than an inconvenience; the burden must be substantial and an interference with a tenet or

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belief that is central to religious doctrine.” Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir.

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1997) (citing Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir. 1987)).

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RLUIPA provides that:
No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution . . . even if the burden results from
a rule of general applicability, unless the government demonstrates that imposition
of the burden on that person—
(1) is in furtherance of a compelling governmental interest; and
(2) is the least restrictive means of furthering that compelling governmental
interest.
42 U.S.C. § 2000cc–1(a).
Under RLUIPA, a plaintiff “bears the initial burden of going forward with evidence
to demonstrate a prima facie claim that the challenged state action constitutes a

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substantial burden on the exercise of his religious beliefs.” Warsoldier, 418 F.3d at 994
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(citing Cutter v. Wilkinson, 544 U.S. 709, 716 (2005)). “[A] burden is substantial under
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RLUIPA when the state denies [an important benefit] because of conduct mandated by

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religious belief, thereby putting substantial pressure on an adherent to modify his behavior

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and to violate his beliefs.” Shakur v. Schriro, 514 F.3d 878, 888 (9th Cir. 2008) (internal

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quotes omitted). A prison’s “accommodation of religious observances” should not be

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elevated “over an institution’s need to maintain order and safety.” Cutter, 544 U.S. at 722.

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On the contrary, “an accommodation must be measured so that it does not override other

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significant interests.” Id. Furthermore, “prison security is a compelling state interest, and

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. . . deference is due to institutional officials’ expertise in this area.” Id. at 725 fn. 13.

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RLUIPA provides greater protection than the First Amendment by protecting

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activities that an offender sincerely believes are central to his religion, rather than just

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those activities which are central to his religion as determined by the tenets of that religion.

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A policy which passes constitutional scrutiny may not pass scrutiny under RLUIPA,

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however, if a policy survives the RLUIPA analysis, it survives the First Amendment

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analysis.

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First Amendment

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Plaintiff alleges that he was not allowed to have four ounces of oil per quarter.
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Plaintiff states that at other facilities four ounces is allowed, but that, at Pleasant Valley,

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he was only allowed two ounces per quarter. Plaintiff alleges that two ounces is an

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inadequate amount for his religious practice. In attachments to his Complaint, Plaintiff

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states that the increased amount is needed to “follow the dictates of [his] holy book.” (ECF

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No. 15, p. 23; Pl.’s 2nd Am. Compl. ex. C.) He goes on to note that a practicing Muslim

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prays five time per day, and that some Muslims do extra prayers. The oil must be applied
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each time a Muslim washes the oil off of their bodies. Plaintiff states that considering the
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number of times a Muslim prays, the amount of oil allowed by the prison is inadequate.
Plaintiff fails to state a claim for the oil. To state a claim under the First Amendment,
Plaintiff must demonstrate a substantial burden on his religious practice. Plaintiff fails to

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do this. He does not state that he has ever run out of oil, or been unable to practice

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because of a lack of oil. Plaintiff does not state that his ability to exercise his religion is

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being impermissibly infringed upon. Therefore, Plaintiff has failed to state a viable First

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Amendment claim and this claim is dismissed with leave to amend.

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2.

RLUIPA

Again, Plaintiff fails to state a claim for the oil under RLUIPA. To state a claim under

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RLUIP, Plaintiff must demonstrate that the policy imposes a substantial burden on the

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practice of his religion. Again, he does not demonstrate a substantial burden. He does not

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state that the amount of oil currently allowed has inhibited his religious practice or effected

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his religion in any way. He just states that at his previous institution he was allowed to

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order more than he is currently allowed to order.

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This statement alone does not

demonstrate a substantial burden on his religion. Therefore, Plaintiff fails to state a claim,

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and this claim will be dismissed. Plaintiff will be given an opportunity to amend and attempt
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to state a claim.
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Equal Protection

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It appears to the Court that Plaintiff’s argument of chapel access may be better

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analyzed as a violation of the Equal Protection Clause of the Fourteenth Amendment,

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which directs that all similarly situated persons be treated alike. City of Cleburne v.

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Cleburne Living Ctr., Inc., 473 U.S. 432, 439 (1985) (citing Plyler v. Doe, 457 U.S. 202, 216
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(1982)).
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A prisoner is entitled “to ‘a reasonable opportunity of pursuing his faith comparable

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to the opportunity afforded fellow prisoners who adhere to conventional religious precepts.’”

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Shakur, 514 F.3d at 891 (quoting Cruz v. Beto, 405 U.S. 319, 321-22 (1972) (per curiam)).

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To state a claim, a plaintiff must allege facts sufficient to support the claim that prison

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officials intentionally discriminated against him on the basis of his religion by failing to

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provide him a reasonable opportunity to pursue his faith compared to other similarly

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situated religious groups. Cruz, 405 U.S. at 321-22; Shakur, 514 F.3d at 891; Serrano v.

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Francis, 345 F.3d 1071, 1082 (9th Cir. 2003); Lee v. City of Los Angeles, 250 F.3d 668,

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686 (9th Cir. 2001); Freeman, 125 F.3d at 737, overruled in part on other grounds by

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Shakur, 514 F.3d at 884-85.

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Here, Plaintiff states that other religious communities are provided regular access

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to the multipurpose chapel. However, Plaintiff does not state what other religions are given

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access, who gives or denies access, nor does he demonstrate that the denial is based on

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religion. As currently pleaded, Plaintiff’s conclusory statement falls short of supporting a

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plausible equal protection claim against Defendants. Therefore, this claim is dismissed.

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Plaintiff will be given one additional opportunity to amend this claim.
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B.

Personal Participation and Supervisory Liability

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Plaintiff does not include any of the named Defendants in the statement of the case.

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Plaintiff could be arguing that some of these Defendants are liable for the conduct of his

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or her subordinates as they were not present and did not participate in the complained of

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conduct as currently described by Plaintiff.

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Under Section 1983, Plaintiff must demonstrate that each named Defendant
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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,
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934 (9th Cir. 2002). The Supreme Court has emphasized that the term “supervisory

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liability,” loosely and commonly used by both courts and litigants alike, is a misnomer.

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Iqbal, 129 S.Ct. at 1949.

“Government officials may not be held liable for the

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unconstitutional conduct of their subordinates under a theory of respondeat superior.” Id.

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at 1948. Rather, each government official, regardless of his or her title, is only liable for

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his or her own misconduct, and therefore, Plaintiff must demonstrate that each defendant,

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through his or her own individual actions, violated Plaintiff’s constitutional rights. Id. at

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1948-49.

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When examining the issue of supervisor liability, it is clear that the supervisors are

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not subject to vicarious liability, but are liable only for their own conduct. Jeffers v. Gomez,

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267 F.3d 895, 915 (9th Cir. 2001); Wesley v. Davis, 333 F.Supp.2d 888, 892 (C.D.Cal.

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2004). In order to establish liability against a supervisor, a plaintiff must allege facts

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demonstrating (1) personal involvement in the constitutional deprivation, or (2) a sufficient

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causal connection between the supervisor’s wrongful conduct and the constitutional

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violation. Jeffers, 267 F.3d at 915; Wesley, 333 F.Supp.2d at 892. The sufficient causal

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connection may be shown by evidence that the supervisor implemented a policy so
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deficient that the policy itself is a repudiation of constitutional rights.

Wesley, 333

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F.Supp.2d at 892 (internal quotations omitted). However, an individual’s general

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responsibility for supervising the operations of a prison is insufficient to establish personal

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involvement. Id. (internal quotations omitted).

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Supervisor liability under Section 1983 is a form of direct liability. Munoz v.

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Kolender, 208 F.Supp.2d 1125, 1149 (S.D.Cal. 2002). Under direct liability, Plaintiff must
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show that Defendant breached a duty to him which was the proximate cause of his injury.
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Id. “‘The requisite causal connection can be established . . . by setting in motion a series

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of acts by others which the actor knows or reasonably should know would cause others to

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inflict the constitutional injury.’” Id. (quoting Johnson v. Duffy, 588 F.2d 740, 743-744 (9th

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Cir. 1978)).

However, “where the applicable constitutional standard is deliberate

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indifference, a plaintiff may state a claim for supervisory liability based upon the

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supervisor’s knowledge of and acquiescence in unconstitutional conduct by others.” Star

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v. Baca, ___ F.3d ___, 2011 WL 477094, *4 (9th Cir. Feb. 11, 2011).

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Plaintiff has not alleged facts demonstrating that any of the named Defendants
personally acted to violate his rights. Plaintiff needs to specifically link each Defendant to

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a violation of his rights. Plaintiff shall be given one additional opportunity to file an

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amended complaint curing the deficiencies in this respect.

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V.

CONCLUSION AND ORDER

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The Court finds that Plaintiff’s Second Amended Complaint fails to state any Section

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1983 claims upon which relief may be granted. The Court will provide Plaintiff time to file

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an amended complaint to address the potentially correctable deficiencies noted above.

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See Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). In his Amended Complaint,

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Plaintiff must demonstrate that the alleged incident or incidents resulted in a deprivation

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of his constitutional rights. Iqbal, 129 S.Ct. at 1948-49. Plaintiff must set forth “sufficient

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factual matter . . . to ‘state a claim that is plausible on its face.’” Iqbal, 129 S.Ct. at 1949

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(quoting Twombly, 550 U.S. at 555). Plaintiff must also demonstrate that each defendant

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personally participated in the deprivation of his rights. Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002).
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Plaintiff should note that although he has been given the opportunity to amend, it
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is not for the purposes of adding new defendants or claims. Plaintiff should focus the

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amended complaint on claims and defendants relating solely to issues arising out of the

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issues described herein.

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Finally, Plaintiff is advised that Local Rule 220 requires that an amended complaint

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be complete in itself without reference to any prior pleading. As a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55,

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57 (9th Cir. 1967). Once an amended complaint is filed, the original complaint no longer

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serves any function in the case. Therefore, in an amended complaint, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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The amended complaint should be clearly and boldly titled “Third Amended Complaint,”
refer to the appropriate case number, and be an original signed under penalty of perjury.

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Based on the foregoing, it is HEREBY ORDERED that:

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1.

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Plaintiff’s complaint is dismissed for failure to state a claim, with leave to file
an amended complaint within thirty (30) days from the date of service of this

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order;

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2.

Plaintiff shall caption the amended complaint “Third Amended Complaint”

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and refer to the case number 1:10-cv-779-GBC (PC); and

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3.

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If Plaintiff fails to comply with this order, this action will be dismissed for
failure to state a claim upon which relief may be granted.

IT IS SO ORDERED.

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Dated:
1j0bbc

May 25, 2011
UNITED STATES MAGISTRATE JUDGE

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