Poslof v. CA Dept of Corrections and Rehabilitations, et al

Filing 29

FINDINGS and RECOMMENDATIONS Regarding Plaintiff's 28 Third Amended Complaint signed by Magistrate Judge Stanley A. Boone on 12/03/2014. Referred to Judge Ishii; Objections to F&R due by 12/29/2014. (Flores, E)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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LONNIE LEE POSLOF, Sr.,

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Plaintiff,
v.
CDCR, et al.,

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Defendants.

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Case No.: 1:13-cv-01935-AWI-SAB (PC)
FINDINGS AND RECOMMENDATIONS
REGARDING PLAINTIFF’S THIRD AMENDED
COMPLAINT
[ECF No. 28]

Plaintiff Lonnie Lee Poslof, Sr. is appearing pro se in this civil rights action pursuant to 42
U.S.C. § 1983.
Now pending before the Court is Plaintiff third amended complaint, filed October 15, 2014.

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I.

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SCREENING REQUIREMENT

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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 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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). Plaintiff must demonstrate that each named defendant personally

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participated in the deprivation of his rights. Iqbal, 556 U.S. at 676-677; Simmons v. Navajo County,

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Ariz., 609 F.3d 1011, 1020-1021 (9th Cir. 2010).

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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, Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th Cir. 2012) (citations omitted), and to survive

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screening, Plaintiff’s claims must be facially plausible, which requires sufficient factual detail to allow

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the Court to reasonably infer that each named defendant is liable for the misconduct alleged. Iqbal,

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556 U.S. at 678-79; Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009). The “sheer

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possibility that a defendant has acted unlawfully” is not sufficient, and “facts that are ‘merely

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consistent with’ a defendant’s liability” falls short of satisfying the plausibility standard. Iqbal, 556

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U.S. at 678; Moss, 572 F.3d at 969.

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II.

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COMPLAINT ALLEGATIONS

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Plaintiff contends that while housed at Corcoran State Prison, he is not provided enough food

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to sustain his health which is deliberately indifference to his medical needs. Defendants fail to provide

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Kosher food in an environment and in a manner as required by his Judaism faith. Specifically,

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Plaintiff cannot eat his first or last meal of the day because it is in violation of his faith. Plaintiff

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contends that documentation from the California Institute for Men, where he was previously housed,

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will demonstrate that Kosher meals were deliberated to his housing unit.

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Inmates on Kosher diet programs must be provided tables that are no “cross-contaminated”

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with non-Kosher foods or any other things that would make the table non-Kosher after proper

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cleaning. It has been requested that prisoners on Kosher diet programs be allowed to remove their

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meals and establish their own environment that will allow them to keep the Kosher food in compliance

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with their faith. In addition, the amount and content of the Kosher food provided is being restricted by

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providing foods that cannot be consumed on the dates and times and failing to provide hot meals on

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Saturdays.

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III.

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DISCUSSION

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A.

Religious Land Use and Institutionalized Persons Act

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To state a claim for violation of RLUIPA, Plaintiff must allege facts plausibly showing that the

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challenged policy and the practices it engenders impose a substantial burden on the exercise of his

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religious beliefs; Plaintiff bears the initial burden of persuasion on this issue. Hartmann v. California

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Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124-25 (9th Cir. 2013) (quotation marks omitted).

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Based on Plaintiff’s allegations in the third amended complaint, Plaintiff states a cognizable
RLUIPA claim against Defendant Beard and Does 1 through 10.

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B.

Deliberate Indifference to Serious Medical Need

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While the Eighth Amendment of the United States Constitution entitles Plaintiff to medical

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care, the Eighth Amendment is violated only when a prison official acts with deliberate indifference to

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an inmate’s serious medical needs. Snow v. McDaniel, 681 F.3d 978, 985 (9th Cir. 2012), overruled

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in part on other grounds, Peralta v. Dillard, 744 F.3d 1076, 1082-83 (9th Cir. 2014); Wilhelm v.

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Rotman, 680 F.3d 1113, 1122 (9th Cir. 2012); Jett v. Penner, 439 F.3d 1091, 1096 (9th Cir. 2006).

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Plaintiff “must show (1) a serious medical need by demonstrating that failure to treat [his] condition

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could result in further significant injury or the unnecessary and wanton infliction of pain,” and (2) that

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“the defendant’s response to the need was deliberately indifferent.” Wilhelm, 680 F.3d at 1122 (citing

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Jett, 439 F.3d 1091, 1096 (9th Cir. 2006)). Deliberate indifference is shown by “(a) a purposeful act

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or failure to respond to a prisoner’s pain or possible medical need, and (b) harm caused by the

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indifference.” Wilhelm, 680 F.3d at 1122 (citing Jett, 439 F.3d at 1096). The requisite state of mind

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is one of subjective recklessness, which entails more than ordinary lack of due care. Snow, 681 F.3d

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at 985 (citation and quotation marks omitted); Wilhelm, 680 F.3d at 1122.

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Plaintiff’s allegations do not state a cognizable claim under the Eighth Amendment. Plaintiff

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has not pled sufficient facts demonstrating that the conditions of the food and/or diet infringed on his

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Eighth Amendment rights. Rather, Plaintiff’s claim regarding his request to provide an adequate
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Kosher diet falls under RLUIPA. Accordingly, Plaintiff fails to state a cognizable claim for deliberate

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indifference under the Eighth Amendment.

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C.

Leave to Amend

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Because Plaintiff was previously notified of the deficiencies in his claims and given leave to

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amend, further leave to amend is not warranted. Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000);

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Noll v. Carlson, 809 F.2d 1446, 1448-1449 (9th Cir. 1987).

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IV.

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RECOMMENDATION

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Based on the foregoing,

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IT IS HEREBY RECOMMENDED that:

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This action shall proceed on Plaintiff’s RLUIPA claim against Defendant Beard and
Does 1 through 10; and

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Plaintiff’s Eighth Amendment claim of deliberate indifference to a serious medical

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need be DISMISSED for failure to state a cognizable claim for relief.

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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 twenty (20)

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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 AObjections to Magistrate Judge=s

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Findings and Recommendations.@ Plaintiff is advised that failure to file objections within the specified

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time may waive the right to appeal the District Court=s order. Martinez v. Ylst, 951 F.2d 1153 (9th

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Cir. 1991).

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IT IS SO ORDERED.

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Dated:

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December 3, 2014
UNITED STATES MAGISTRATE JUDGE

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