Porter v. Wegman et al

Filing 54

ORDER Consolidating Civil Case No. 1:11-cv-02106-MJS With Related And Previously Filed Civil Case No. 1:10-cv-01500-LJO-DLB (ECF No. 1 ), signed by Magistrate Judge Michael J. Seng on 9/25/2012. (Fahrney, E)

1
2
3
4
5
6
7
8
9

UNITED STATES DISTRICT COURT

10
EASTERN DISTRICT OF CALIFORNIA

11
12

BRIAN ELLIS PORTER,

CASE NO.

1:11-cv-02106-MJS (PC)

13
Plaintiff,

ORDER CONSOLIDATING CIVIL CASE NO.
1:11-cv-02106-MJS WITH RELATED AND
PREVIOUSLY FILED CIVIL CASE NO. 1:10cv-01500-LJO-DLB

14
v.

15
16

MATTHEW CATE, et al.,
(ECF No. 1)
Defendants.

17
18

/

19
SCREENING ORDER

20
21
22
23

I.

PROCEDURAL HISTORY
On December 21, 2011, Plaintiff Brian Ellis Porter, a state prisoner proceeding pro

se and in forma pauperis, filed this civil rights action pursuant to 42 U.S.C. § 1983. (ECF

24
25
26

No. 1.) Plaintiff consented to Magistrate Judge jurisdiction. (ECF No. 4.) Plaintiff’s
Complaint is now before the Court for screening.

27
1

1
2
3

II.

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

against a governmental entity or officer or employee of a governmental entity. 28 U.S.C.

4
5

§ 1915A(a). The Court must dismiss a complaint or portion thereof if the prisoner has

6

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

7

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

8

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

9

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

10

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

11
12

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

13

Section 1983 “provides a cause of action for the ‘deprivation of any rights, privileges,

14

or immunities secured by the Constitution and laws’ of the United States.” Wilder v.

15

Virginia Hosp. Ass’n, 496 U.S. 498, 508 (1990) (quoting 42 U.S.C. § 1983). Section 1983

16

is not itself a source of substantive rights, but merely provides a method for vindicating

17

federal rights conferred elsewhere. Graham v. Connor, 490 U.S. 386, 393-94 (1989).

18
19

III.

SUMMARY OF COMPLAINT

20

The Complaint names the following individuals as Defendants: (1) Matthew Cate,

21

Secretary, California Department of Corrections and Rehabilitation (CDCR); (2) M.D. Biter,

22

Warden, Kern Valley State Prison (KVSP); (3) S. Lopez, Chief Medical Officer, KVSP; (4)

23

Cherylee Wegman, Community Resource Manager, KVSP; (5) J. Castro, Associate

24

Warden, KVSP; (6) E. Lunsford, Registered Nurse, KVSP; (7) Grewal, Licensed Vocational

25
26

Nurse, KVSP; and (8) John Does 1-100.

27
2

1

Plaintiff alleges the following:

2

Plaintiff is a practicing member of The House of Yahweh (HOY), a religion that

3

observes tenets found in the first five books of the bible. Plaintiff’s beliefs require, among

4
5

other things, that he consume a kosher diet and observe holy feast days such as Yahweh’s

6

Passover Feast of Unleavened Bread.

7

participate in the kosher meal program at KVSP. The Jewish Chaplain determined that the

8

dietary strictures of HOY would be satisfied with a kosher diet and approved Plaintiff’s

9

request. (Id. at 8.) Plaintiff did not receive kosher meals; he reapplied in 2009 and

10

(Compl. at 6.)

In 2008 Plaintiff applied to

received no response. (Id. at 9.)

11
In January 2010, Plaintiff and fellow HOY parishioners formally requested

12
13

reasonable accommodation for the HOY Passover that was to take place on March 30

14

through April 6, 2010. (Id. at 9, 10.) KVSP accommodated the Jewish Passover and the

15

kosher meal program would have satisfied the requirements of the HOY Passover. (Id. at

16

9.) Defendant Wegman signed an authorization for Plaintiff to receive a vegetarian diet.

17

(Id. at 10.) A vegetarian diet is not sufficient for various reasons. For example, Plaintiff’s

18
faith requires that he eat particular meat on the first night of HOY Passover. (Id. at 11.)
19
20
21

Plaintiff received no further response regarding his request for accommodation. (Id. at 11,
12.)

22

On March 30, 2010, Plaintiff was summoned to the chapel at 9:00AM rather than

23

sunset, as requested. A meal was served and Plaintiff refused it as the food did not satisfy

24

the HOY Passover requirements. The formal request submitted in January 2010 clearly

25
delineated the dietary requirements for HOY Passover. Defendant Wegman had provided
26
27

Plaintiff with compliant meals for the last three days of the Passover in 2009 after
3

1

complaints were made on Plaintiff’s behalf. (Id. at 12.) Plaintiff was denied a religious

2

meal each day of Passover and did not take regular meals.

3

Each day Plaintiff told custody and medical staff that he was not being provided with

4
5

food he could eat. Unspecified KVSP staff members recorded the fact that Plaintiff was

6

not eating, but provided no immediate medical care. (Id. at 13.) On April 6, 2010,

7

personnel were notified that Plaintiff had passed out in his cell, but they took no action.

8

Plaintiff passed out a second time that day and this time struck his head. Plaintiff was

9

discovered unconscious and was taken to the medical clinic. Defendant Grewal authored

10

a medical care request on Plaintiff’s behalf and checked his blood pressure. Grewal “said

11
12

that there was nothing more she could do because there was no RN or doctor available.”

13

(Id. at 14, 15.) Defendant Grewal instructed Plaintiff to return to his cell when he had

14

regained his strength. During subsequent regularly scheduled health care visits Plaintiff

15

complained to medical personnel of symptoms related to his head injury. No treatment

16

was provided for months. (Id. at 15.) In contrast, during a similar deprivation of acceptable

17

food through the 2011 Passover, Plaintiff’s health was monitored daily and he was

18
provided nutritional supplements. (Id. at 16.)
19
20

Defendant Wegman was responsible for providing religious accommodation at

21

KVSP. She determined that a kosher diet and allowances for Passover are reserved for

22

members of the Jewish faith and that, as a member of HOY, Plaintiff did not qualify.

23

Plaintiff filed an inmate appeal regarding the aforementioned events. Wegman maintained

24

in her response that Plaintiff received reasonable accommodation. (Id. at 26.) Wegman

25
provides the Jewish and Muslim congregations at KVSP the accommodations necessary
26
27

to practice multi-day religious ceremonies with religious meals. (Id. at 27.)
4

1

Defendant Castro reviewed Plaintiff’s appeal and Wegman’s response. Castro

2

denied Plaintiff’s appeal at the second level. (Id. at 24.) Defendant Biter also affirmed the

3

denial of Plaintiff’s appeals. (Id. at 20.) Biter maintained a policy at KVSP reserving

4
5

kosher meals and Passover accommodation for members of the Jewish faith only. (Id. at

6

22.) Plaintiff sent Defendants Biter and Cate letters that went unanswered complaining of

7

his mistreatment. (Id. at 21.) Defendant Cate reviewed and denied Plaintiff’s appeal at the

8

director’s level. (Id. at 17, 18.)

9
10

Defendants Lunsford and Grewal denied Plaintiff treatment for his head injury in
deliberate indifference to the serious medical need. Does 1-100 exhibited deliberate

11
12

indifference to Plaintiff’s serious medical need by failing to treat Plaintiff as he went without

13

food during Passover. Defendant Biter promulgated a policy that a prisoner must verbally

14

declare “Hunger Strike” before medical staff may respond to an inmate refusing food. (Id.

15

at 22.) Defendant Lopez, as Chief Medical Officer, acted with deliberate indifference by

16

failing to train or supervise her subordinates on the medical staff. (Id. at 28.) Defendant

17

Biter also failed to properly supervise the medical staff and ensure that Plaintiff was

18
receiving adequate medical care. (Id. at 21, 22.)
19
20

Plaintiff asserts violations of his First, Eighth, and Fourteenth Amendment rights as

21

well as various rights codified in statutes proscribing either burdening religious exercise in

22

certain circumstances1 or discrimination in federally funded programs.2

23
24
25
1

42 U.S.C. § 2000cc-1.

2

42 U.S.C. § 3789d(c)(1), 2000d.

26
27

5

1
2

IV.

ANALYSIS
A.

Section 1983

3
To state a claim under Section 1983, a plaintiff must allege two essential elements:
4
5

(1) that a right secured by the Constitution or laws of the United States was violated and

6

(2) that the alleged violation was committed by a person acting under the color of state law.

7

See West v. Atkins, 487 U.S. 42, 48 (1988); Ketchum v. Alameda Cnty., 811 F.2d 1243,

8

1245 (9th Cir. 1987).

9
10

A complaint must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief . . . .” Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

11
12

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

13

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

14

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

15

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

16

face.’” Id. Facial plausibility demands more than the mere possibility that a defendant

17

committed misconduct and, while factual allegations are accepted as true, legal

18
19

conclusions are not. Id. at 1949-50.

20

B.

21

On August 19, 2010, Plaintiff initiated a civil rights action, Porter v. Wegman, et al.,

22

No. 1:10-cv-01500-LJO-DLB, claiming violations similar to those raised in the instant

23

complaint. The crux of Plaintiff’s claims in both cases is denial of kosher meals and

24

Consolidation

reasonable accommodation for HOY Passover. Plaintiff also alleged infringement of his

25
26

Eighth Amendment rights and certain statutory rights in both cases. The former action

27
6

1

address alleged deprivations during Passover in 2009 and 2011, while the instant

2

complaint complains of treatment in 2010. Both cases make reference to violations

3

allegedly suffered during Passover in 2009, 2010, and 2011, and the ongoing denial of

4

Plaintiff’s request to receive kosher meals. Plaintiff characterizes the deprivation allegedly

5
6

suffered each year as the same. (Wegman, ECF No. 12 at 13.)

7

Federal Rule of Civil Procedure 42(a) permits the Court to consolidate actions

8

involving a common question of law or fact, and consolidation is proper when it serves the

9

purposes of judicial economy and convenience. “The district court has broad discretion

10

under this rule to consolidate cases pending in the same district.” Investors Research Co.

11

v. United States District Court for the Central District of California, 877 F.2d 777 (9th Cir.

12
1989). In determining whether to consolidate actions, the Court weighs the interest of
13
14

judicial convenience against the potential for delay, confusion, and prejudice caused by

15

consolidation. Southwest Marine, Inc., v. Triple A. Mach. Shop, Inc., 720 F. Supp. 805,

16

807 (N.D. Cal. 1989). Plaintiff’s claims in the above-captioned action fall in the middle of

17

a series of similar, if not identical, alleged violations of Plaintiff’s rights. Plaintiff advances

18

either identical or substantially similar causes of action in each case. The Court foresees

19
little risk in causing delay, confusion, or prejudice. Plaintiff is far more likely to be afforded
20
21

timely relief through consolidation. The two actions involve common questions of law and

22

fact and therefore warrant consolidation. Pierce v. County of Orange, 526 F.3d 1190, 1203

23

(9th Cir. 2008).

24

V.

25

CONCLUSION AND ORDER
For the reasons stated above, the Court hereby orders that this case be

26
CONSOLIDATED with case Porter v. Wegman, et al., No. 1:10-cv-01500-LJO-DLB. The
27
7

1

Clerk of Court is to file a copy of this Order in both the above-captioned docket and the

2

docket in Porter v. Wegman, et al., No. 1:10-cv-01500-LJO-DLB in order to notify all parties

3

of the consolidation. The Clerk shall administratively close this case. All future filings shall

4

be in action number 1:10-cv-01500-LJO-DLB.

5
6
7
8
9

IT IS SO ORDERED.
Dated:
ci4d6

September 25, 2012

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
8