Tamayo v. Fisher et al

Filing 15

FINDINGS and RECOMMENDATIONS recommending that this action be allowed to proceed with the First Amended Complaint, on Plaintiff's RLUIPA and First Amendment Claims against Defendant: Fisher, Reeves, Myers and Duke for Violation of Plaintiff' ;s rights to practice his religion; Defendant Farkas be Dismissed; Case be referred back to Magistrate Judge re 12 Amended Prisoner Civil Rights Complaint filed by Angel Tamayo ; referred to Judge O'Neill,signed by Magistrate Judge Gary S. Austin on 04/09/2015. Objections to F&R due by 5/14/2015 (Martin-Gill, S)

1
2
3
4
5
6
7

8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ANGEL TAMAYO,

12

Plaintiff,

13
14

vs.
R. FISHER, et al.,

15

Defendants.

16
17
18
19

1:12-cv-00510-LJO-GSA-PC
FINDINGS AND RECOMMENDATIONS,
RECOMMENDING THAT THIS CASE
PROCEED WITH THE FIRST AMENDED
COMPLAINT, ON PLAINTIFF’S CLAIMS
AGAINST DEFENDANTS FISHER,
REVEES, MYERS, AND DUKE FOR
VIOLATION OF PLANTIFF’S
RELIGIOUS RIGHTS UNDER RLUIPA
AND THE FIRST AMENDMENT, AND
THAT ALL OTHER CLAIMS AND
DEFENDANTS BE DISMISSED FROM
THIS ACTION FOR FAILURE TO STATE
A CLAIM
(Doc. 12.)
OBJECTIONS, IF ANY, DUE WITHIN
THIRTY DAYS

20
21
22

23

I.

BACKGROUND

24

Angel Tamayo (“Plaintiff”) is a former state prisoner proceeding pro se with this civil

25

rights action pursuant to 42 U.S.C. § 1983. Plaintiff filed the Complaint commencing this

26

action on March 8, 2012. (Doc. 1.) The court screened the Complaint under 28 U.S.C. §

27

1915A and entered an order on May 19, 2014, requiring Plaintiff to either file an amended

28

complaint or notify the court of his willingness to proceed on the claims found cognizable by
1

1

the court. (Doc. 11.) On June 25, 2014, Plaintiff filed the First Amended Complaint, which is

2

now before the court for screening. (Doc. 12.)

3

II.

SCREENING REQUIREMENT

4

The court is required to screen complaints brought by prisoners seeking relief against a

5

governmental entity or officer or employee of a governmental entity. 28 U.S.C. ' 1915A(a).

6

The court must dismiss a complaint or portion thereof if the prisoner has raised claims that are

7

legally Afrivolous or malicious,@ that fail to state a claim upon which relief may be granted, or

8

that seek monetary relief from a defendant who is immune from such relief. 28 U.S.C.

9

' 1915A(b)(1),(2). ANotwithstanding any filing fee, or any portion thereof, that may have been

10

paid, the court shall dismiss the case at any time if the court determines that the action or

11

appeal fails to state a claim upon which relief may be granted.@ 28 U.S.C. ' 1915(e)(2)(B)(ii).

12

A complaint is required to contain Aa short and plain statement of the claim showing

13

that the pleader is entitled to relief.@ Fed. R. Civ. P. 8(a)(2). Detailed factual allegations are

14

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

15

conclusory statements, do not suffice.@ Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937,

16

1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955

17

(2007)). While a plaintiff=s allegations are taken as true, courts Aare not required to indulge

18

unwarranted inferences.@ Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009)

19

(internal quotation marks and citation omitted). Plaintiff must set forth Asufficient factual

20

matter, accepted as true, to >state a claim to relief that is plausible on its face.=@ Iqbal, 556 U.S.

21

at 678. While factual allegations are accepted as true, legal conclusions are not. Id.

22

To state a viable claim for relief, Plaintiff must set forth sufficient factual allegations to

23

state a plausible claim for relief. Id. at 678-79; Moss v. U.S. Secret Service, 572 F.3d 962, 969

24

(9th Cir. 2009). The mere possibility of misconduct falls short of meeting this plausibility

25

standard. Id.

26

III.

SUMMARY OF FIRST AMENDED COMPLAINT

27

The events at issue in the First Amended Complaint allegedly occurred at Pleasant

28

Valley State Prison (PVSP) in Coalinga, California, when Plaintiff was incarcerated there.
2

1

Plaintiff names as defendants Fisher, Jr. (Associate Warden), Sergeant D. Revees, W. K. Myers

2

(Community Resource Manager), B. Farkas (Food Service Manager), and Duke (Ad-Seg

3

Officer) (collectively, “Defendants”). Defendants were all employed by the California

4

Department of Corrections and Rehabilitation (CDCR) at PVSP at the time of the events at

5

issue. Plaintiff’s factual allegations follow.

6

In 2007, during Ramadan,1 Plaintiff was transferred from the Richard C. Donovan

7

Correctional Facility in San Diego to PVSP. Since Plaintiff was in Orientation and was unable

8

to attend chapel, he let the officer who brought food to his cell know that he was a Muslim, and

9

the prison made the proper arrangements for Plaintiff’s meals to be served to him at the proper

10

times required by his religion and pursuant to prison regulations and medical forms.

11

Around June 2010, Plaintiff sent request forms to defendant W. K. Myers to be added

12

to the list of inmates fasting during the month of Ramadan. When he received no response,

13

Plaintiff asked Officers Duke and Revees to assist him. When Plaintiff appeared before a

14

committee, he asked defendant Fisher, Jr., to help him, and Fisher told him to talk to the Imam

15

(religious leader). However, PVSP did not have an Imam at that time, as Brother Michael

16

Salaam was no longer working there. So Plaintiff and his request were ignored. Plaintiff tried

17

to save his food on writing paper in his cell, but when he left the cell for yard time or showers,

18

prison officers would promptly remove it, to prevent growth of bacteria. Since Plaintiff was

19

not able to save his food, and was not receiving food at times allowed by his religion, Plaintiff

20

stopped taking any food for two and a half weeks in a hunger strike. Defendant Sergeant

21

Revees ordered Plaintiff to be taken to a management cell for a few months. Finally, when

22

Plaintiff was given food, defendant Farkas would not “substitute anny (sic) ice treats.” (First

23

Amd. Cmp. at 4 ¶1.)

24
25

Plaintiff requests monetary damages and injunctive relief.
///

26
27
28

1

Ramadan is the ninth month of the Muslim calendar and the holy month of fasting, during
which Muslims are obliged to refrain between dawn and dusk from food, drink, and certain behaviors.
Encyclopedia Britannica, http://www.britannica.com.EBchecked/topic/490415/Ramadan (last visited Apr. 6,
2015).
3

1

IV.

2

PLAINTIFF=S CLAIMS
The Civil Rights Act under which this action was filed provides:

3

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

4
5
6

the Constitution . . . shall be liable to the party injured in an
action at law, suit in equity, or other proper proceeding for
redress.

7

42 U.S.C. ' 1983. ASection 1983 . . . creates a cause of action for violations of the federal

8

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

9

(internal quotations omitted).

10

A.

11

Plaintiff’s only allegation against defendant Farkas is that Farkas would not “substitute

12

anny (sic) ice treats” in Plaintiff’s food. (First Amd. Cmp. at 4 ¶1.) This allegation, without

13

more, fails to state any claim under § 1983. The fact that Plaintiff was deprived of, or forced to

14

take, “ice treats” in his food does not rise to the level of any cognizable federal claim.

15

Therefore, the court finds that Plaintiff fails to state any claims under § 1983 against defendant

16

Farkas.

17

B.

18
19
20
21
22

23
24
25

Defendant Farkas

Rights to Practice Religion – RLUIPA and the First Amendment
1.

RLUIPA

The Religious Land Use and Institutionalized Persons Act of 2000 (ARLUIPA@)
provides:
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 personB
(1)

is in furtherance of a compelling government interest; and

(2)

is the least restrictive means of furthering that compelling
government interest.

26

42 U.S.C. ' 2000cc-1. Plaintiff must allege facts demonstrating that defendants substantially

27

burdened the exercise of his religious beliefs. Warsoldier v. Woodford, 418 F.3d 989, 994-95

28

(9th Cir. 2005). In any RLUIPA claim, one must first identify the Areligious exercise@ allegedly
4

1

impinged upon, and then must ask whether the prison regulation at issue Asubstantially burdens@

2

that religious exercise. Greene v. Solano County Jail, 513 F.3d 982, 987 (9th Cir. 2008).

3

Here, Plaintiff alleges that he notified all five defendants in July 2010 that he is a

4

Muslim and would like to be placed on the list for Ramadan meals, but defendants Fisher,

5

Myers, Revees, and Duke ignored his requests, which prevented him from receiving Ramadan

6

meals in 2010. The court finds these allegations sufficient to state a colorable claim for relief

7

against defendants Fisher, Myers, Revees, and Duke for violation of RLUIPA.

8

2.

First Amendment

9

The First Amendment to the United States Constitution provides that ACongress shall

10

make no law respecting the establishment of religion, or prohibiting the free exercise thereof . .

11

. .@ U.S. Const. amend. I. Prisoners Aretain protections afforded by the First Amendment,@

12

including the free exercise of religion. O=Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987).

13

However, A>[l]awful incarceration brings about the necessary withdrawal or limitation of many

14

privileges and rights, a retraction justified by the considerations underlying our penal system.=@

15

Id. (quoting Price v. Johnson, 334 U.S. 266, 285 (1948)).

16

The protections of the Free Exercise Clause are triggered when prison officials

17

substantially burden the practice of an inmate=s religion by preventing him from engaging in

18

conduct which he sincerely believes is consistent with his faith. Shakur v. Schriro, 514 F.3d

19

878, 884-85 (9th Cir. 2008); Freeman v. Arpaio, 125 F.3d 732, 737 (9th Cir. 1997), overruled

20

in part by Shakur, 514 F.3d at 884-85. AIn order to establish a free exercise violation, [a

21

prisoner] must show the defendants burdened the practice of his religion, by preventing him

22

from engaging in conduct mandated by his faith, without any justification reasonably related to

23

legitimate penological interests.@ Freeman, 125 F.3d at 736. AIn order to reach the level of a

24

constitutional violation, the interference with one=s practice of religion >must be more than an

25

inconvenience; the burden must be substantial and an interference with a tenet or belief that is

26

central to religious doctrine.=@ Id., 125 F.3d at 737 (quoting Graham v. C.I.R., 822 F.2d 844,

27

851 (9th Cir. 1987)).

28

///
5

1

Here, as in Plaintiff=s RLUIPA claim, Plaintiff indicates that he was substantially

2

burdened in his religious practice by Defendants. Therefore, the court finds that Plaintiff states

3

a cognizable claim against defendants Fisher, Myers, Revees, and Duke for violation of his

4

First Amendment rights to exercise his religion.

5

C.

6

The Eighth Amendment protects prisoners from inhumane methods of punishment and

7

from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th

8

Cir. 2006). Although prison conditions may be restrictive and harsh, prison officials must

9

provide prisoners with food, clothing, shelter, sanitation, medical care, and personal safety.

10

Farmer v. Brennan, 511 U.S. 825, 832-33, 114 S.Ct. 1970 (1994) (internal citations and

11

quotations omitted).

12

confinement claim, and only those deprivations denying the minimal civilized measure of life=s

13

necessities are sufficiently grave to form the basis of an Eighth Amendment violation. Hudson

14

v. McMillian, 503 U.S. 1, 9, 112 S.Ct. 995 (1992) (citations and quotations omitted). In order

15

to state a claim for violation of the Eighth Amendment, the plaintiff must allege facts sufficient

16

to support a claim that prison officials knew of and disregarded a substantial risk of serious

17

harm to the plaintiff. E.g., Farmer, 511 U.S. at 847; Frost v. Agnos, 152 F.3d 1124, 1128 (9th

18

Cir. 1998).

19

determining whether the conditions complained of are grave enough to form the basis of a

20

viable Eighth Amendment claim. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 2006).

21

A[R]outine discomfort inherent in the prison setting@ does not rise to the level of a constitutional

22

violation. Id. at 731.

Eighth Amendment Claim

Extreme deprivations are required to make out a conditions of

The circumstances, nature, and duration of the deprivations are critical in

23

The deliberate indifference standard involves both an objective and a subjective prong.

24

First, the alleged deprivation must be, in objective terms, Asufficiently serious.@ Id. at 834.

25

Second, subjectively, the prison official must Aknow of and disregard an excessive risk to

26

inmate health or safety.@ Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir.

27

1995). To prove knowledge of the risk, however, the prisoner may rely on circumstantial

28

///
6

1

evidence; in fact, the very obviousness of the risk may be sufficient to establish knowledge.

2

Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995).

3

Plaintiff’s deprivation of Ramadan meals, which caused him to go without any food

4

during part of Ramadan, was a sufficiently serious deprivation. However, Plaintiff has not

5

alleged facts showing that any of the Defendants acted or failed to act while knowing of and

6

consciously disregarding an excessive risk to Plaintiff’s health or safety. Moreover, Plaintiff

7

has not alleged any injury as a result of fasting, some which was self-imposed. Therefore, the

8

court finds that Plaintiff fails to state a cognizable Eighth Amendment claim against any of the

9

Defendants.

10

D.

11

Plaintiff requests monetary damages and injunctive relief. Plaintiff currently resides at

12

a street address in South Gate, California, and the past events at issue in this action occurred at

13

PVSP. When an inmate seeks injunctive relief concerning the prison where he is incarcerated,

14

his claims for such relief become moot when he is no longer subjected to those conditions.

15

Nelson v. Heiss, 271 F.3d 891, 897 (9th Cir. 2001); Dilley v. Gunn, 64 F.3d 1365, 1368 (9th

16

Cir. 1995); Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991). Therefore, Plaintiff’s claim

17

for injunctive relief against officials at PVSP is moot because Plaintiff is no longer incarcerated

18

at PVSP and therefore is not subject to conduct by those officials. Further, any award of

19

equitable relief is governed by the Prison Litigation Reform Act, which provides in relevant

20

part, AProspective relief in any civil action with respect to prison conditions shall extend no

21

further than necessary to correct the violation of the Federal right of a particular plaintiff or

22

plaintiffs. The court shall not grant or approve any prospective relief unless the court finds that

23

such relief is narrowly drawn, extends no further than necessary to correct the violation of the

24

Federal right, and is the least intrusive means necessary to correct the violation of the Federal

25

right.@ 18 U.S.C. ' 3626(a)(1)(A). Based on the nature of the claims at issue in this action,

26

which involve past conduct, Plaintiff is not entitled to injunctive relief and is therefore confined

27

to seeking money damages for the violations of his federal rights.

28

///

CLAIM FOR INJUNCTIVE RELIEF

7

1

V.

CONCLUSION AND RECOMMENDATIONS

2

The Court finds that Plaintiff states cognizable claims against defendants Fisher,

3

Revees, Myers, and Duke for violation of his religious rights under RLUIPA and the First

4

Amendment. However, Plaintiff fails to state any other cognizable claims against any of the

5

Defendants. The Court previously granted Plaintiff leave to amend the complaint, with ample

6

guidance by the Court. The Court finds that the deficiencies outlined above are not capable of

7

being cured by amendment, and therefore further leave to amend should not be granted. 28

8

U.S.C. ' 1915(e)(2)(B)(ii); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

9

Accordingly, based on the foregoing, IT IS HEREBY RECOMMENDED that:

10

1.

This action be allowed to proceed with the First Amended Complaint, on

11

Plaintiff=s RLUIPA and First Amendment claims against defendants Fisher,

12

Revees, Myers, and Duke for violation of Plaintiff’s rights to practice his

13

religion;

14

2.

15

All other claims and defendants be dismissed from this action for Plaintiff’s
failure to state a claim under § 1983;

16

3.

17

Plaintiff’s Eighth Amendment claims be dismissed for Plaintiff’s failure to state
a claim under § 1983;

18

4.

19

Defendant Farkas be dismissed from this action based on Plaintiff’s failure to
state any claims against him; and

20

5.

21

This case be referred back to the Magistrate Judge for further proceedings,
including initiation of service of process.

22

These Findings and Recommendations will be submitted to the United States District

23

Judge assigned to the case, pursuant to the provisions of Title 28 U.S.C. ' 636(b)(l). Within

24

thirty (30) days after being served with these Findings and Recommendations, Plaintiff may file

25

written objections with the Court.

26

Magistrate Judge=s Findings and Recommendations.@ Plaintiff is advised that failure to file

27

objections within the specified time may result in the waiver of rights on appeal. Wilkerson v.

28

///

The document should be captioned AObjections to

8

1

Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014) (citing Baxter v. Sullivan, 923 F.2d 1391, 1394

2

(9th Cir. 1991)).

3
4
5
6

IT IS SO ORDERED.
Dated:

April 9, 2015

/s/ Gary S. Austin
UNITED STATES MAGISTRATE JUDGE

7

8
9
10
11
12
13
14
15
16
17
18
19
20
21
22

23
24
25
26
27
28
9