Rivera v. Davey et al

Filing 33

FINDINGS and RECOMMENDATIONS Regarding Dismissal of Certain Claims and Defendants re 32 ; ORDER on Request to Appoint Counsel; Referred to District Judge Anthony W. Ishii, signed by Magistrate Judge Barbara A. McAuliffe on 2/11/2020. Objections to F&R due within FOURTEEN (14) DAYS. (Orozco, A)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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RICKY RIVERA,

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Case No. 1:16-cv-01817-AWI-BAM (PC)
Plaintiff,

v.
DAVE DAVEY, et al.,

FINDINGS AND RECOMMENDATIONS
REGARDING DISMISSAL OF CERTAIN
CLAIMS AND DEFENDANTS
ORDER ON REQUEST TO APPOINT
COUNSEL

Defendants.
(ECF No. 32)

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FOURTEEN (14) DAY DEADLINE

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Plaintiff Ricky Rivera is a state prisoner proceeding pro se and in forma pauperis in this
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civil rights action pursuant to 42 U.S.C. § 1983.
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This action was initiated on December 2, 2016. (ECF No. 1.) On November 22, 2017, the
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Court screened Plaintiff’s complaint, found that he had failed to state any cognizable claim for

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relief, and granted him leave to amend within thirty days. (ECF No. 14.) Plaintiff failed to amend,
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and, on January 11, 2018, the Court issued findings and recommendations recommending dismissal
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of this action. (ECF No. 15.) After Plaintiff filed a motion seeking an extension of time to amend
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his complaint, on January 16, 2018, the Court vacated the findings and recommendations and
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granted Plaintiff an additional thirty days to file an amended complaint. (ECF Nos. 16, 17.)
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However, instead of filing a first amended complaint, on February 9, 2018, Plaintiff filed
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objections, arguing that he had sufficiently pled a cognizable claim in his original complaint. (ECF

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No. 18.)

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On March 22, 2018, the Court issued findings and recommendations stating that it had

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considered Plaintiff’s objections, but nevertheless found that Plaintiff’s complaint failed to allege

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any cognizable claim for relief. (ECF No. 19.) Therefore, the Court recommended that this action

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be dismissed and granted Plaintiff fourteen days to file objections to the findings and

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recommendations. (Id.) After Plaintiff filed a motion seeking an extension of time to file an

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amended complaint in compliance with the Court’s November 22, 2017 screening order, on April

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16, 2018, the Court vacated the findings and recommendations that it issued on March 22, 2018

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and granted Plaintiff thirty days to file a first amended complaint. (ECF Nos. 20, 21.)

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The Court screened the first amended complaint and following Plaintiff’s multiple requests

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to extend time, Plaintiff’s second amended complaint, filed on September 20, 2019, is currently

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before the Court for screening. (ECF No. 22.)

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I.

Screening Requirement and Standard

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

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

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§ 1915A(a). Plaintiff’s complaint, or any portion thereof, is subject to dismissal if it is frivolous or

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malicious, if it fails to state a claim upon which relief may be granted, or if it seeks monetary relief

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from a defendant who is immune from such relief. 28 U.S.C. §§ 1915A(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 (2009) (citing Bell Atlantic Corp. v. Twombly,

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550 U.S. 544, 555 (2007)). While a plaintiff’s allegations are taken as true, courts “are not required

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to indulge unwarranted inferences.” Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir.

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2009) (internal quotation marks and citation omitted).

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To survive screening, Plaintiff’s claims must be facially plausible, which requires sufficient

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factual detail to allow the Court to reasonably infer that each named defendant is liable for the
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misconduct alleged. Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss v. U.S. Secret Serv.,

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572 F.3d 962, 969 (9th Cir. 2009). The sheer possibility that a defendant acted unlawfully is not

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sufficient, and mere consistency with liability falls short of satisfying the plausibility standard.

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Iqbal, 556 U.S. at 678 (quotation marks omitted); Moss, 572 F.3d at 969.

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II.

Plaintiff’s Allegations

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Plaintiff is currently housed at California State Prison, Corcoran (“CSP-COR”), where the

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events detailed in the second amended complaint are alleged to have occurred. Plaintiff names the

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following defendants: (1) CSP-COR Warden Dave Davey; (2) Community Resource Manager M.

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Robicheaux; (3) Christian Chaplain Ed Crain;1 and (4) S.M.V. Chapoleun, Catholic Priest.

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Plaintiff alleges as follows: Plaintiff is Jewish since birth, by a Jewish mother. Plaintiff

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asserts that he is a member of the Aleph Institute, which was founded in 1981 by Rabbi Sholom D.

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Lipskar at the express direct of the Lubaritcher Rebbe. Further, Plaintiff alleges that all Defendants

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are, and have been aware, that Plaintiff has been a Jew since birth. Plaintiff’s faith requires him to

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follow the religious prayers and rituals under the Jewish faith. Plaintiff’s sincerely held religious

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belief is that Jewish religious practices be conducted in a room that does not contain a toilet or

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similar receptacle and the Mezuzah cannot be placed or hung on an entrance door to a restroom.

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On June 23, 2014, Plaintiff arrived at CSP-COR, after being transferred from Wasco State

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Prison. However, from May 2014 through April 2016, Plaintiff’s requests to practice his Jewish

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prayers and Jewish holy day events were repeatedly denied by Defendants Robicheaux, Crain,

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Chapoleun, and Davey. From July 2014 through November or December 2015, Defendant

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Chapoleun was employed as the CSP-COR chaplain. From November or December 2015 and then

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on, Defendant Crain replaced Defendant Chapoleun as the CSP-COR chaplain.

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Robicheaux was/is Defendants Chapoleun’s and Crain’s supervisor.

Defendant

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On May 18, 2014, June 1, 2014, July 10, 2014, September 23, 2014, September 30, 2014,

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October 4, 2014, October 6, 2014, October 11, 2014, October 12, 2014, December 12, 2014,

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Plaintiff refers to this Defendant both a “Cain” and “Crain” in the second amended complaint.
The exhibits attached to the complaint identify this Defendant as “Crain,” and therefore, the Court
will adopt this spelling.
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December 26, 2014, January 31, 2015, February 28, 2015, March 1, 2015, March 29, 2015, March

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31, 2015, May 2, 2015, May 19, 2015, July 1, 2015, July 21, 2015, August 31, 2015, September

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11, 2015, September 18, 2015, September 23, 2015, October 2, 2015, December 2, 2015, December

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17, 2015, January 20, 2016, March 18, 2016, March 19, 2016, and on April 17, 2016, Plaintiff

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submitted separate Form 22 Inmate Request for Interview, Item or Service (“Form 22”) requests to

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Defendant Robicheaux and either Defendants Chapoleun or Crain via the institutional mail, asking

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the Defendants to observe specific Jewish holy day ritual on July 17, 2014, August 5, 2014,

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September 25-26, 2014, September 23, 2014, September 28, 2014, September 30, 2014, October

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4, 2014, October 9-17, 2014, December 12, 17-24, 2014, December 26, 2014, January 1, 2015,

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January 31, 2015, February 4, 2015, February 28, 2015, March 4-5, 2015, March 29, 2015, April

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3-10, 2015, May 7, 2015, May 24-25, 2015, July 1, 2015, July 5, 2015, July 21, 2015, July 26,

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2015, September 11, 2015, September 14-16, 2015, September 23, 2015, September 28-October 6,

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2015, December 7-22, 2015, January 25, 2016, March 18, 23-24, 2016, and April 22, 2016. Each

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Form 22 request asked for space and time in the chapel and notified Defendants Robicheaux and

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Chapoleun or Crain to the fact that Plaintiff could not perform any holy day rituals in his prison

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cell because the holy day rituals cannot be performed in a room that contains a toilet or any other

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receptacle where a person is intended to urinate or defecate. Plaintiff suggested if the Chapel were

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not available, space in the gym or education room would suffice. Plaintiff’s request to use the yard

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for his religious service was denied because Plaintiff and all STG-Surenos were subject to modified

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program during this period. However, Plaintiff never received a response to any of the Form 22s

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that he submitted between May 18, 2014 and April 17, 2016, in violation of Title 15. Further, on

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all the dates Plaintiff requested use of the Facility Chapel between July 15, 2014 and April 22,

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2016, Plaintiff was denied access to the Facility Chapel or any other room without a toilet where

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he could perform a Jewish holy day ritual. Plaintiff alleges that Defendants Robicheaux and

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Chapoleun or Crain each individually denied him access to the Facility Chapel or any other room

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without a toilet where he could perform a Jewish holy day ritual. The denials were not reasonably

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related to legitimate penological interests because for two years he was substantially burdened in

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his practice.
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On August 17, 2015, August 24, 2015, and November 21, 2015, Plaintiff sent Form 22

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requests to Defendant Robicheaux, asking the Defendant to immediately assist him and rectify the

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continued denial and deprivation of his requested religious obligatory prayers and holy day events

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being conducted in the Chapel facility. However, Defendant Robicheaux failed to respond to

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Plaintiff’s Form 22 requests and failed to assist Plaintiff in establishing a time and place to perform

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his obligatory Jewish prayers and holy day events in 2015 at the Facility Chapel.

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In 2014 and/or 2015, Plaintiff made personal request to Defendant Crain and Chapoleun at

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the Chapel for time and space and/or a room without a toilet to allow him to conduct his Jewish

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Prayers/Rituals consistent with his religious beliefs. Both Defendant did not make any appropriate

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accommodations for Plaintiff. This was not reasonably related to legitimate penological interests.

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On September 30, 2014, December 31, 2014, March 31, 2015, June 30, 2015, September

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30, 2015, December 31, 2015, and March 31, 2016, Plaintiff submitted separate Form 22 requests

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to Defendant Davey, asking Defendant Davey to adopt a policy and procedure to rectify the denial

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of access to the Facility Chapel or other room without a toilet where Jewish holy day rituals could

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be performed.

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accommodations were made for Plaintiff’s sincerely held religious beliefs and Defendant Davey’s

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nonresponse was not reasonably related to a legitimate penological interest because a non response

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burdened Plaintiff’s religious practice for a year.

Plaintiff asserts that he never received any response to the Form 22s. No

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However, on April 1, 2016, an unidentified man in plain clothes called Plaintiff for an

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interview regarding all of the Form 22s that Plaintiff had sent to Defendant Davey. The unidentified

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man, who Plaintiff identifies at DOE#1,2 refused to give Plaintiff his name, had all of the Form 22s

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in his physical possession, and informed Plaintiff that he would only answer the Form 22s verbally

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so that no evidence that the conversation had occurred would exist. The unidentified man told

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Plaintiff that he was addressing Plaintiff’s Form 22s on behalf of Defendant Davey, that Defendant

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Davey had actually read the Form 22s, and that Defendant Davey knowingly neglected to put a

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policy and procedure in place to prevent the deprivation of the rights of Jewish inmates to perform

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Plaintiff is informed that he has not named any DOE defendants in the caption of the second amended
complaint or identified any DOE defendants in the list of defendants.

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holy day rituals in a room without a toilet. DOE #1 also said that Defendant Davey admitted his

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failure to have a policy for Jewish inmates to exercise their beliefs was the reason Defendant

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Robicheaux, Chapoleun and Crain were not granting Plaintiff’s requests. Plaintiff alleges that DOE

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#1 conceded that Defendant Davey “’admitted’ he had a ‘causal connection’ of creating a custome

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of the absence of any policies or procedure to the point defendant Davey conceding that the doctrine

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of ‘respondeat superior’ does not immune Davey from civil liability were Plaintiff top ever file

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suit.” (EDF 32 para 13)(unedited text).

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On November 10, 2015, Plaintiff submitted a Form 602 administrative appeal, Log No.

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COR-15-06806, to Defendant Davey and “supervisor liability” for failure to train and supervise

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Defendants Robicheaux, Chapoleun, and Crain and for their continued intentional failure to comply

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with their agency’s policies and give Plaintiff the same opportunity to perform his religious prayer

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services and holy day events that all other religious inmates were afforded. He challenged the lack

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of equal access to Chapel like other religions. Defendant Crain told Plaintiff that staff has been

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trained and have provided Plaintiff with the necessary items for his Jewish observation and that the

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Protestant Chaplain has been assigned to ensure Plaintiff was provided the same privileges and

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other religious groups. Plaintiff’s appeal was granted as to food sales, but Plaintiff’s appeal had

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nothing to do with food and providing religious artifacts. Plaintiff appealed. Non-Defendant Chief

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Deputy Warden Sexton granted Plaintiff’s appeal of access to the Facility Chapel or a room without

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a toilet where Plaintiff could conduct his religious practice on or about March-April 2016. A policy

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was implemented in which Plaintiff and other Jewish inmates could conduct Jewish Rituals in a

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space which did not contain a toilet.

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Plaintiff alleges that Defendant Davey, Ribocheaux, Chapoleun and Crain, intentionally

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discriminated against Plaintiff on the basis of his Jewish religion by failing to provide a reasonable

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opportunity to pursue his Jewish faith “compared to other similarly situated religious groups of

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Christians, Islamic, Buddhist, Catholic, and Kemectic, inmates faiths.” Plaintiff alleges that these

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defendants treatment of Plaintiff and their treatment of all other similarly situated inmates of

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Christina, Islamic, Buddhist, Catholic, and Kemectic faiths is not reasonably related to legitimate

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penological interest or goals.
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At an unknown date, Defendant Davey developed an institutional policy and procedure to

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allow Jewish inmates to use the Facility Chapel and, after April 22, 2016, Plaintiff was authorized

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to utilize the Facility Chapel in order to perform all of his Jewish holy day rituals.

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As relief, Plaintiff seeks compensatory and punitive damages.
III.

Discussion
First Amendment – Free Exercise of Religion

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A.

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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,

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348 (1987) (internal quotations and citations omitted). To implicate the Free Exercise Clause, a

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prisoner must show that the belief at issue is both “sincerely held” and “rooted in religious belief.”

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Malik v. Brown, 16 F.3d 330, 333 (9th Cir. 1994); see Shakur v. Schriro, 514 F.3d 878, 884-85

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(9th Cir. 2008) (noting the Supreme Court’s disapproval of the “centrality” test and finding that the

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“sincerity” test in Malik determines whether the Free Exercise Clause applies).

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However, “a prisoner’s right to free exercise of religion ‘is necessarily limited by the fact

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of incarceration.’” Jones v. Williams, 791 F.3d 1023, 1032 (9th Cir. 2015) (citation omitted). “‘To

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ensure that courts afford appropriate deference to prison officials,’ the Supreme Court has directed

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that alleged infringements of prisoners’ free exercise rights be ‘judged under a ‘reasonableness’

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test less restrictive than that ordinarily applied to alleged infringements of fundamental

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constitutional rights.’” Id. (quoting O’Lone, 482 U.S. at 349.) “The challenged conduct ‘is valid

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if it is reasonably related to legitimate penological interests.’” Id. (quoting O’Lone, 482 U.S. at

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349). “A person asserting a free exercise claim must show that the government action in question

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substantially burdens the person’s practice of [his] religion.” Jones, 791 F.3d at 1031; Shakur, 514

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F.3d at 884-85. If the inmate makes his initial showing of a sincerely held religious belief, he must

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establish that prison officials substantially burden the practice of his religion by preventing him

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from engaging in conduct which he sincerely believes is consistent with his faith. Shakur, 514 F.3d

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at 884-85.

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consideration” for claims under the First Amendment. Holt v. Hobbs, 574 U.S. 352, 135 S. Ct.

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853, 862 (2015).

“[T]he availability of alternative means of practicing religion is a relevant

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Here, Plaintiff alleges that his First Amendment right to free exercise of religion was

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violated at CSP-COR from May 2014 through April 2016 because Defendants Ribocheaux,

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Chapoleun and Crain prohibited Plaintiff from conducting Jewish prayers and Jewish holy day

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rituals in the Facility Chapel or any another room despite his a sincerely held religious belief that

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Jewish prayers are to be conducted in a room that does not contain a toilet or any other receptacle

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where a person is intended to urinate and/or defecate. Liberally construing the facts in Plaintiff’s

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favor, which the Court must do at the pleading stage, Plaintiff has stated a cognizable claim for a

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violation of his First Amendment right to free exercise of religion against Defendants Ribocheaux,

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Chapoleun and Crain.
Fourteenth Amendment – Equal Protection

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C.

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“The Equal Protection Clause of the Fourteenth Amendment commands that no State shall

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‘deny to any person within its jurisdiction the equal protection of the laws,’ which is essentially a

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direction that all persons similarly situated should be treated alike.” City of Cleburne v. Cleburne

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Living Center, Inc., 473 U.S. 432, 439 (1985) (citation omitted). To state a claim under the Equal

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Protection Clause, Plaintiff must allege facts sufficient to support the claim that prison officials

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

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reasonable opportunity to pursue his faith compared to other similarly situated religious groups.

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

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Here, Plaintiff asserts that, while he requested and was denied access to the Facility Chapel

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in order to practice his obligatory Jewish prayers and holy day rituals on numerous occasions from

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May 2014 through April 2016, all other inmates of the Christian, Islamic, Catholic, Buddhist, and

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Kemectic services were afforded their obligatory religious services at the Facility Chapel from May

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2014 through April 2016. However, Plaintiff’s second amended complaint includes fewer factual

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allegations about treatment of other religious groups than his first amended complaint. Plaintiff’s

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allegations are conclusory and unsupported by any factual allegations demonstrating that he is not

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similarly situated or treated as all other inmates of the Christian, Islamic, Catholic, Buddhist, and

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Kemectic faiths. Therefore, Plaintiff has not alleged a cognizable claim for a violation of his

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Fourteenth Amendment right to equal protection. Despite being provided leave to amend and the
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applicable legal standards, Plaintiff has been unable to cure the deficiencies.

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D.

Supervisor Liability

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Insofar as Plaintiff is attempting to sue Defendant Warden Davey, or any other defendant,

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based on his or her supervisory role, he may not do so. Liability may not be imposed on supervisory

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personnel for the actions or omissions of their subordinates under the theory of respondeat superior.

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Iqbal, 556 U.S. at 676–77; Simmons v. Navajo Cty., Ariz., 609 F.3d 1011, 1020–21 (9th Cir. 2010);

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Ewing v. City of Stockton, 588 F.3d 1218, 1235 (9th Cir.2009); Jones v. Williams, 297 F.3d 930,

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934 (9th Cir. 2002).

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Supervisors may be held liable only if they “participated in or directed the violations, or

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knew of the violations and failed to act to prevent them.” Taylor v. List, 880 F.2d 1040, 1045 (9th

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Cir. 1989); accord Starr v. Baca, 652 F.3d 1202, 1205–06 (9th Cir. 2011); Corales v. Bennett, 567

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F.3d 554, 570 (9th Cir. 2009). Supervisory liability may also exist without any personal

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participation if the official implemented “a policy so deficient that the policy itself is a repudiation

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of the constitutional rights and is the moving force of the constitutional violation.” Redman v.

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County of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (citations and quotations marks omitted),

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abrogated on other grounds by Farmer v. Brennan, 511 U.S. 825 (1970).

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Plaintiff alleges that Defendant Davey is liable for failure to train and supervise Defendants

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Ribocheaux, Chapoleun and Crain who did not follow and comply with policy to give Plaintiff the

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same opportunity to perform his religious prayer services that all other religious inmates were

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afforded. A supervisor’s failure to train or supervise subordinates may give rise to individual

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liability under § 1983 where the failure to train amounts to deliberate indifference to the rights of

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persons with whom the subordinates come into contact. See Canell v. Lighner, 143 F.3d 1210,

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1213-14 (9th Cir. 1998). To impose liability under a failure to train theory, a plaintiff must allege

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sufficient facts that the subordinate’s training was inadequate, the inadequate training was a

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deliberate choice on the part of the supervisor, and the inadequate training caused a constitutional

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violation. Id. at 1214; see also City of Canton v. Harris, 489 U.S. 378, 391 (1989); Clement v.

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Gomez, 298 F.3d 898, 905 (9th Cir. 2002) (to establish failure to train, a plaintiff must show that

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“in light of the duties assigned to specific officers or employees, the need for more or different
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training is obvious, and the inadequacy so likely to result in violations of constitutional rights, that

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the policy-makers … can reasonably be said to have been deliberately indifferent to the need.”

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(citation and internal quotation marks omitted)). “A pattern of similar constitutional violations by

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untrained employees is ‘ordinarily necessary’ to demonstrate deliberate indifference for purposes

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of failure to train.” Connick v. Thompson, 563 U.S. 51, 61 (2011) (citation omitted).

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Here, while Plaintiff asserts that Defendant Davey had a duty to ensure that subordinate

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staff were properly trained and supervised, Plaintiff has not alleged facts demonstrating that any

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named subordinate Defendant’s training or supervision was inadequate, that the inadequate training

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was a deliberate choice on Defendant Davey’s part, and that the inadequate training caused the

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violation of Plaintiff’s constitutional rights. Indeed, Plaintiff acknowledges that Defendant Crain

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told Plaintiff that employees were adequately trained with the necessary items for his Jewish

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observation. Therefore, Plaintiff’s conclusory allegations fail to state a cognizable supervisory

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liability claim for failure to train or supervise subordinate employees against Defendant Davey.

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Leave to amend should not be granted as to this claim because Plaintiff was admonished in the

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prior screening order that he could not change the claims alleged.

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Plaintiff states a cognizable claim against Defendant Davey for a deficient policy that

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violates his constitutional right to free exercise of religion and was the moving force for the

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violation. Plaintiff alleges there was no institutional policy and procedure to allow Jewish inmates

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to use the Facility Chapel, space in the gym or education room, which prevented Jewish inmates

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from performing holy day rituals in a room without a toilet. The deficient policy denied access to

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the Facility Chapel or other suitable area in order to practice his obligatory Jewish prayers and holy

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day rituals on numerous occasions from May 2014 through April 2016 and this denial substantially

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burdened Plaintiff’s ability to perform his religious rituals. Accepting the allegations as true, as the

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Court must at this stage of the proceeding, Defendant Davey was aware of the failure to implement

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policies, that he ratified or caused the failure, and that his inaction and omissions was the moving

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force of the alleged constitutional violations regarding Plaintiff’s religious practices.

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IV.

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Request for Appointment of Counsel
Plaintiff does not have a constitutional right to appointed counsel in this action, Rand v.
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Rowland, 113 F.3d 1520, 1525 (9th Cir. 1997), rev’d in part on other grounds, 154 F.3d 952, 954

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n.1 (9th Cir. 1998), and the court cannot require an attorney to represent plaintiff pursuant to 28

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U.S.C. § 1915(e)(1). Mallard v. U.S. Dist. Court for the S. Dist. of Iowa, 490 U.S. 296, 298

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(1989). However, in certain exceptional circumstances the court may request the voluntary

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assistance of counsel pursuant to section 1915(e)(1). Rand, 113 F.3d at 1525.

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Without a reasonable method of securing and compensating counsel, the Court will seek

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volunteer counsel only in the most serious and exceptional cases. In determining whether

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“exceptional circumstances exist, a district court must evaluate both the likelihood of success on

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the merits [and] the ability of the [plaintiff] to articulate his claims pro se in light of the

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complexity of the legal issues involved.” Id. (internal quotation marks and citations omitted).

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The Court has considered Plaintiff’s request, but does not find the required exceptional

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circumstances. Even if it is assumed that Plaintiff is not well versed in the law and that he has

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made serious allegations which, if proved, would entitle him to relief, his case is not exceptional.

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This Court is faced with similar cases filed by prisoners who are proceeding pro se and in forma

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pauperis almost daily. These prisoners also must conduct legal research and prosecute claims

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without the assistance of counsel.

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Furthermore, at this stage in the proceedings, the Court cannot make a determination that

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Plaintiff is likely to succeed on the merits. Plaintiff’s complaint has been screened and while it

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states a claim for relief, based on a review of the record in this case, the Court does not find that

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Plaintiff cannot adequately articulate his claims.

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V.

Conclusion and Recommendation

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Based on the above, the Court finds that Plaintiff’s complaint states a cognizable claim

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against Defendants Ribocheaux, Chapoleun and Crain for violation of Plaintiff First Amendment,

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Free Exercise of Religion; and against Defendant Davey for a deficient policy that violates

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Plaintiff’s constitutional right to Free Exercise of Religion, but fails to state any other cognizable

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claim for relief. Despite being provided with the relevant pleading and legal standards, Plaintiff

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has been unable to cure the remaining deficiencies and further leave to amend is not warranted.

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Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000).
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Accordingly, IT IS HEREBY RECOMMENDED as follows:

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This action proceed on Plaintiff’s second amended complaint, filed on September

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20, 2019, against Defendants Ribocheaux, Chapoleun and Crain for violation of

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Plaintiff First Amendment, Free Exercise of Religion;

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2.

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And against Defendant Davey for a deficient policy that violates Plaintiff’s
constitutional right to Free Exercise of Religion; and

3.

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All other claims and defendants be dismissed from this action based on Plaintiff’s
failure to state claims upon which relief may be granted.

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These Findings and Recommendation 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 fourteen (14)

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days after being served with these Findings and Recommendation, 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 Recommendation.” Plaintiff is advised that failure to file objections within the

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specified time may result in the waiver of the “right to challenge the magistrate’s factual findings”

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on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 839 (9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

/s/ Barbara

February 11, 2020

A. McAuliffe

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UNITED STATES MAGISTRATE JUDGE

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