Evans v. Lopez

Filing 8

ORDER REQUIRING Plaintiff to File Amended Complaint or Notify the Court of his Willingness to Proceed only on Claims Found to be Cognizable; 21-Day Deadline signed by Magistrate Judge Jennifer L. Thurston on 9/15/2017. (Attachments: # 1 Amended Complaint Form)(Sant Agata, S)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 THOMAS EVANS, Plaintiff, 14 ORDER REQUIRING PLAINTIFF TO FILE AMENDED COMPLAINT OR NOTIFY THE COURT OF HIS WILLINGNESS TO PROCEED ONLY ON CLAIMS FOUND TO BE COGNIZABLE Defendant. 12 13 Case No. 1:17-cv-00719-AWI-JLT (PC) (Doc. 1) v. D. LOPEZ, 15 16 21-DAY DEADLINE 17 Plaintiff claims that in June 2016, D. Lopez denied him Ramadan meals which Plaintiff, a 18 devoted Muslim, was approved to receive. Plaintiff has stated one cognizable claim and may be 19 able to correct the deficiencies in his pleading on other claims. Thus, Plaintiff may either file a 20 first amended complaint correcting the deficiencies or advise the Court that he is willing to 21 proceed only on the claims identified as cognizable. 22 A. Screening Requirement 23 The Court is required to screen complaints brought by prisoners seeking relief against a 24 governmental entity or officer or employee of a governmental entity. 28 U.S.C. § 1915A(a). The 25 Court must dismiss a complaint or portion thereof if the prisoner has raised claims that are legally 26 frivolous, malicious, fail to state a claim upon which relief may be granted, or that seek monetary 27 relief from a defendant who is immune from such relief. 28 U.S.C. § 1915A(b)(1),(2); 28 U.S.C. 28 § 1915(e)(2)(B)(i)-(iii). 1 1 B. 2 Plaintiff alleges that, on June 19, 2016 and June 20, 2016, Officer Lopez denied him, a Summary of Plaintiff=s Complaint 3 devoted Muslim, Ramadan meals which Plaintiff was approved to receive. This resulted in 4 Plaintiff going without food for over 48 hours. Plaintiff states that “two known Supervisors” 5 knew about Officer Lopez’s reputation for discriminating, retaliating, and harassing Muslim 6 inmates and at least one of them ignored this and did nothing to protect Muslim inmates from 7 Officer Lopez’s acts. 8 Plaintiff has stated some cognizable claims and may be able to amend to correct the 9 deficiencies in his pleading as to other claims. Thus, the Court provides the applicable standards 10 related to Plaintiff’s purported claims and leave to file a first amended complaint. Alternatively, 11 Plaintiff may notify the Court that he wishes to proceed only on the claims now cognizable as 12 discussed below. 13 C. 14 Pleading Requirements 1. Federal Rule of Civil Procedure 8(a) 15 “Rule 8(a)’s simplified pleading standard applies to all civil actions, with limited 16 exceptions,” none of which applies to section 1983 actions. Swierkiewicz v. Sorema N. A., 534 17 U.S. 506, 512 (2002); Fed. R. Civ. Pro. 8(a). A complaint must contain “a short and plain 18 statement of the claim showing that the pleader is entitled to relief . . . .” Fed. R. Civ. Pro. 8(a). 19 “Such a statement must simply give the defendant fair notice of what the plaintiff's claim is and 20 the grounds upon which it rests.” Swierkiewicz, 534 U.S. at 512. 21 Detailed factual allegations are not required, but “[t]hreadbare recitals of the elements of a 22 cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 23 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). 24 Plaintiff must set forth “sufficient factual matter, accepted as true, to ‘state a claim that is 25 plausible on its face.’” Iqbal, 556 U.S. at 678, quoting Twombly, 550 U.S. at 555. Factual 26 allegations are accepted as true, but legal conclusions are not. Iqbal. at 678; see also Moss v. U.S. 27 Secret Service, 572 F.3d 962, 969 (9th Cir. 2009); Twombly, 550 U.S. at 556-557. 28 While “plaintiffs [now] face a higher burden of pleadings facts . . . ,” Al-Kidd v. Ashcroft, 2 1 580 F.3d 949, 977 (9th Cir. 2009), the pleadings of pro se prisoners are still construed liberally 2 and are afforded the benefit of any doubt. Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010). 3 However, “the liberal pleading standard . . . applies only to a plaintiff’s factual allegations,” 4 Neitze v. Williams, 490 U.S. 319, 330 n.9 (1989), “a liberal interpretation of a civil rights 5 complaint may not supply essential elements of the claim that were not initially pled,” Bruns v. 6 Nat'l Credit Union Admin., 122 F.3d 1251, 1257 (9th Cir. 1997) quoting Ivey v. Bd. of Regents, 7 673 F.2d 266, 268 (9th Cir. 1982), and courts are not required to indulge unwarranted inferences, 8 Doe I v. Wal-Mart Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and 9 citation omitted). The “sheer possibility that a defendant has acted unlawfully” is not sufficient, 10 and “facts that are ‘merely consistent with’ a defendant’s liability” fall short of satisfying the 11 plausibility standard. Iqbal, 556 U.S. at 678, 129 S. Ct. at 1949; Moss, 572 F.3d at 969. 12 If he chooses to file a first amended complaint, Plaintiff should make it as concise as 13 possible. He should simply state which of his constitutional rights he feels were violated by each 14 Defendant and its factual basis. 15 2. 16 Linkage Requirement The Civil Rights Act (42 U.S.C. ' 1983) requires that there be an actual connection or link 17 between the actions of the defendants and the deprivation alleged to have been suffered by 18 Plaintiff. See Monell v. Department of Social Services, 436 U.S. 658 (1978); Rizzo v. Goode, 423 19 U.S. 362 (1976). The Ninth Circuit has held that “[a] person ‘subjects’ another to the deprivation 20 of a constitutional right, within the meaning of section 1983, if he does an affirmative act, 21 participates in another’s affirmative acts or omits to perform an act which he is legally required to 22 do that causes the deprivation of which complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 23 (9th Cir. 1978). In order to state a claim for relief under section 1983, Plaintiff must link each 24 named defendant with some affirmative act or omission that demonstrates a violation of 25 Plaintiff=s federal rights. 26 Plaintiff’s allegation that “two known Supervisors” were aware of Officer Lopez’s 27 punitive acts towards Muslim inmates is insufficient to link any such supervisor to violations of 28 Plaintiff’s rights. Since the two supervisors are known, Plaintiff must identify them by their 3 1 surnames and clearly indicate which Defendant(s) he feels are responsible for each violation of 2 his constitutional rights and the factual basis for his claims. Plaintiff’s Complaint must put each 3 Defendant on notice of Plaintiff’s claims against him or her. See Austin v. Terhune, 367 F.3d 4 1167, 1171 (9th Cir. 2004). 5 D. 6 7 Claims for Relief 1. Religion Claims Prisoners “do not forfeit all constitutional protections by reason of their conviction and 8 confinement in prison.” Bell v. Wolfish, 441 U.S. 520, 545, 99 S.Ct. 1861, 60 L.Ed.2d 447 (1979). 9 Inmates retain the protections afforded by the First Amendment, “including its directive that no 10 law shall prohibit the free exercise of religion.” O'Lone v. Estate of Shabazz, 482 U.S. 342, 348 11 (1987) (citing Cruz v. Beto, 405 U.S. 319, 322 (1972) (per curiam)). However, “ ‘[l]awful 12 incarceration brings about the necessary withdrawal or limitation of many privileges and rights, a 13 retraction justified by the considerations underlying our penal system.’ ” Id. (quoting Price v. 14 Johnston, 334 U.S. 266, 285 (1948)). 15 a. First Amendment -- Free Exercise 16 The First Amendment is applicable to state action by incorporation through the Fourteenth 17 Amendment. Everson v. Bd. of Educ. of Ewing Twp., 330 U.S. 1, 8 (1947). “The right to exercise 18 religious practices and beliefs does not terminate at the prison door[,]” McElyea v. Babbitt, 833 19 F.2d 196, 197 (9th Cir.1987) (citing O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987)), but 20 a prisoner’s right to free exercise of religion “is necessarily limited by the fact of incarceration,” 21 Ward v. Walsh, 1 F.3d 873, 876 (9th Cir.1993) (citing O’Lone, 482 U.S. at 348, 107 S.Ct. 2400). 22 The Free Exercise Clause of the First Amendment is “not limited to beliefs which are shared by 23 all of the members of a religious sect.” Holt v. Hobbs, --- U.S. ---, 135 S.Ct. 853, 862 (2015) 24 (quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-716 25 (1981)). 26 A person asserting a free exercise claim must show that the government action in question 27 substantially burdens the person’s practice of her religion. Jones v. Williams, 791 F.3d 1023, 28 1031 (9th Cir. 2015) citing Graham v. C.I.R., 822 F.2d 844, 851 (9th Cir.1987), aff’d sub nom. 4 1 Hernandez v. C.I.R., 490 U.S. 680, 699, 109 S.Ct. 2136 (1989). “A substantial burden . . . 2 place[s] more than an inconvenience on religious exercise; it must have a tendency to coerce 3 individuals into acting contrary to their religious beliefs or exert substantial pressure on an 4 adherent to modify his behavior and to violate his beliefs.” Ohno v. Yasuma, 723 F.3d 984, 1011 5 (9th Cir.2013) (quoting Guru Nanak Sikh Soc’y of Yuba City v. Cnty. of Sutter, 456 F.3d 978, 988 6 (9th Cir.2006) (internal quotation marks and alterations omitted)). 7 “To ensure that courts afford appropriate deference to prison officials,” the Supreme Court 8 has directed that alleged infringements of prisoners’ free exercise rights be “judged under a 9 ‘reasonableness’ test less restrictive than that ordinarily applied to alleged infringements of 10 fundamental constitutional rights.” O’Lone, 482 U.S. at 349. The challenged conduct “is valid if 11 it is reasonably related to legitimate penological interests.” Id. (quoting Turner v. Safley, 482 12 U.S. 78, 89 (1987)). “[T]he availability of alternative means of practicing religion is a relevant 13 consideration” for claims under the First Amendment. Holt v. Hobbs, --- U.S. ---, 135 S.Ct. 853, 14 862 (2015). 15 Plaintiff’s allegations that Officer Lopez denied him Ramadan meals despite Plaintiff 16 being a devoted follower of Islam and being on the list to receive Ramadan meals states a 17 cognizable claim under the First Amendment against Officer Lopez. 18 19 b. RLUIPA A prisoner’s ability to freely exercise his religion is also protected by the Religious Land 20 Use and Institutionalized Persons Act (ARLUIPA@). 42 U.S.C. ' 2000cc-1. RLUIPA protects “ 21 ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief,’ 22 §2000cc-5(7)(A), but of course, a prisoner’s request for an accommodation must be sincerely 23 based on a religious belief and not some other motivation.” Holt v. Hobbs, --- U.S. ---, 135 S.Ct. 24 853, 862 (2015) (citing Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ---, 134 S.Ct. 2751, 2774, 25 n. 28 (2014)). RLUIPA defines “religious exercise” to include “any exercise of religion, whether 26 or not compelled by, or central to, a system of religious belief.” § 2000cc-5(7)(A). Like the Free 27 Exercise Clause of the First Amendment, RLUIPA is “not limited to beliefs which are shared by 28 all of the members of a religious sect.” Holt v. Hobbs, --- U.S. ---, 135 S.Ct. 853, 862 (2015) 5 1 (quoting Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707, 715-716, 101 2 S.Ct. 1425 (1981)). 3 Section 3 of RLUIPA provides that “[n]o government shall impose a substantial burden on 4 the religious exercise of a person residing in or confined to an institution . . . even if the burden 5 results from a rule of general applicability,” unless the government shows that the burden is “in 6 furtherance of a compelling government interest” and “is the least restrictive means of furthering . 7 . . that interest.” 42 U.S.C. § 2000cc–1(a) (2012). 8 9 A “substantial burden” occurs “where the state . . . denies [an important benefit] because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to 10 modify his behavior and to violate his beliefs.” Warsoldier v. Woodford, 418 F.3d 989, 995 (9th 11 Cir.2005) (alteration in original) (quotation omitted). RLUIPA provides greater protection than 12 the First Amendment’s alternative means test. Holt , 135 S.Ct. at 862. “RLUIPA's ‘substantial 13 burden’ inquiry asks whether the government has substantially burdened religious exercise . . . , 14 not whether the RLUIPA claimant is able to engage in other forms of religious exercise.” Id. 15 “Context matters in the application of” the compelling governmental interest standard. 16 Cutter v. Wilkinson, 544 U.S. 709, 722–23 (2005) (alteration in original) (internal quotation and 17 citation omitted). “RLUIPA contemplates a “ ‘ “more focused” ’ ” inquiry and “ ‘ “requires the 18 Government to demonstrate that the compelling interest test is satisfied through application of the 19 challenged law ‘to the person’ -- the particular claimant whose sincere exercise of religion is 20 being substantially burdened.” ’ ” Holt, 135 S.Ct. at 863 (quoting Hobby Lobby, 134 S.Ct., at 21 2779 (quoting Gonzales v. O Centro Espirita Beneficiente Unio do Vegetal, 546 U.S. 418, 430- 22 431 (2006) (quoting § 2000bb–1(b)))). RLUIPA requires courts to “ ‘scrutiniz[e] the asserted 23 harm of granting specific exemptions to particular religious claimants' ” and “to look to the 24 marginal interest in enforcing” the challenged government action in that particular context. 25 Hobby Lobby, 134 S.Ct., at 2779 (quoting O Centro, 126 S.Ct. 1211; alteration in original). 26 “The least-restrictive-means standard is exceptionally demanding,” and it requires the 27 government to “sho[w] that it lacks other means of achieving its desired goal without imposing a 28 substantial burden on the exercise of religion by the objecting part[y].” Hobby Lobby, 134 S.Ct., 6 1 at 2780. “[I]f a less restrictive means is available for the Government to achieve its goals, the 2 Government must use it.” United States v. Playboy Entertainment Group, Inc., 529 U.S. 803, 3 815, 120 S.Ct. 1878 (2000). 4 “Courts are expected to apply RLUIPA’s standard with due deference to the experience 5 and expertise of prison and jail administrators in establishing necessary regulations and 6 procedures to maintain good order, security and discipline, consistent with consideration of costs 7 and limited resources.” Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1124- 8 25 (9th Cir. 2013) (citing Cutter, 544 U.S. at 723) (internal quotation marks omitted). Damages 9 claims are not available under the RLUIPA against prison officials in either their individual 10 capacity, Wood v. Yordy, 753 F.3d 899 (9th Cir. 2014); nor in one's official capacity because of 11 sovereign immunity, Sossamon v. Texas, --- U.S. ---, 131 S.Ct. 1651 (2011); Alvarez v. Hill, 667 12 F.3d 1061, 1063 (9th Cir. 2012). 13 Plaintiff’s allegation that Officer Lopez denied him Ramadan meals despite Plaintiff being 14 a devoted follower of Islam and being on the list to receive Ramadan meals states a cognizable 15 claim under RLUIPA. 16 17 2. Retaliation Prisoners have a First Amendment right to file grievances against prison officials and to 18 be free from retaliation for doing so. Waitson v. Carter, 668 F.3d 1108, 1114-1115 (9th Cir. 19 2012); Brodheim v. Cry, 584 F.3d 1262, 1269 (9th Cir.2009). A retaliation claim has five 20 elements. Id. at 1114. 21 First, the plaintiff must allege that the retaliated-against conduct is protected. Id. The 22 filing of an inmate grievance is protected conduct, Rhodes v. Robinson, 408 F.3d 559, 568 (9th 23 Cir. 2005), as are the rights to speech or to petition the government, Rizzo v. Dawson, 778 F.2d 24 527, 532 (9th Cir. 1985); see also Valandingham v. Bojorquez, 866 F.2d 1135 (9th Cir. 1989); 25 Pratt v. Rowland, 65 F.3d 802, 807 (9th Cir. 1995). Second, the plaintiff must show the 26 defendant took adverse action against the plaintiff. Rhodes, at 567. Third, the plaintiff must 27 allege a causal connection between the adverse action and the protected conduct. Waitson, 668 28 F.3d at 1114. Fourth, the plaintiff must allege that the “official’s acts would chill or silence a 7 1 person of ordinary firmness from future First Amendment activities.” Robinson, 408 F.3d at 568 2 (internal quotation marks and emphasis omitted). “[A] plaintiff who fails to allege a chilling 3 effect may still state a claim if he alleges he suffered some other harm,” Brodheim, 584 F.3d at 4 1269, that is “more than minimal,” Robinson, 408 F.3d at 568 n.11. Fifth, the plaintiff must 5 allege “that the prison authorities’ retaliatory action did not advance legitimate goals of the 6 correctional institution. . . .” Rizzo v. Dawson, 778 F.2d 527, 532 (9th Cir.1985). 7 It bears repeating that while Plaintiff need only allege facts sufficient to support a 8 plausible claim for relief, the mere possibility of misconduct is not sufficient, Iqbal, 556 U.S. at 9 678-79, and the Court is “not required to indulge unwarranted inferences,” Doe I v. Wal-Mart 10 Stores, Inc., 572 F.3d 677, 681 (9th Cir. 2009) (internal quotation marks and citation omitted). 11 Thus, Plaintiff’s allegations that Officer Lopez withheld Ramadan meals from Plaintiff on June 12 19, 2016 and June 20, 2016 because of Plaintiff’s religion are insufficient to show that Plaintiff=s 13 protected activity was the motivating factor behind a Defendant’s actions. 14 15 3. Deliberate Indifference The Eighth Amendment protects prisoners from inhumane methods of punishment and 16 from inhumane conditions of confinement. Farmer v. Brennan, 511 U.S. 825 (1994); Morgan v. 17 Morgensen, 465 F.3d 1041, 1045 (9th Cir. 2006). Thus, no matter where they are housed, prison 18 officials have a duty to ensure that prisoners are provided adequate shelter, food, clothing, 19 sanitation, medical care, and personal safety. Johnson v. Lewis, 217 F.3d 726, 731 (9th Cir. 20 2000) (quotation marks and citations omitted). To establish a violation of the Eighth 21 Amendment, the prisoner must “show that the officials acted with deliberate indifference. . . .” 22 Labatad v. Corrections Corp. of America, 714 F.3d 1155, 1160 (9th Cir. 2013) (citing Gibson v. 23 County of Washoe, 290 F.3d 1175, 1187 (9th Cir. 2002). 24 The deliberate indifference standard involves both an objective and a subjective prong. 25 First, the alleged deprivation must be, in objective terms, “sufficiently serious.” Farmer at 834. 26 Second, subjectively, the prison official must “know of and disregard an excessive risk to inmate 27 health or safety.” Id. at 837; Anderson v. County of Kern, 45 F.3d 1310, 1313 (9th Cir. 1995). 28 Objectively, extreme deprivations are required to make out a conditions of confinement claim and 8 1 only those deprivations denying the minimal civilized measure of life’s necessities are 2 sufficiently grave to form the basis of an Eighth Amendment violation. Hudson v. McMillian, 3 503 U.S. 1, 9 (1992). Although the Constitution “ ‘does not mandate comfortable prisons,’ ” 4 Wilson v. Seiter, 501 U.S. 294, 298 (1991) (quoting Rhodes, 452 U.S. at 349), “inmates are 5 entitled to reasonably adequate sanitation, personal hygiene, and laundry privileges, particularly 6 over a lengthy course of time,” Howard, 887 F.2d at 137. 7 Subjectively, if an objective deprivation is shown, a plaintiff must show that prison 8 officials acted with a sufficiently culpable state of mind, that of “deliberate indifference.” Wilson, 9 501 U.S. at 303; Labatad, 714 F.3d at 1160; Johnson, 217 F.3d at 733. “Deliberate indifference 10 is a high legal standard.” Toguchi v. Chung, 391 F.3d 1051, 1060 (9th Cir.2004). “Under this 11 standard, the prison official must not only ‘be aware of the facts from which the inference could 12 be drawn that a substantial risk of serious harm exists,’ but that person ‘must also draw the 13 inference.’” Id. at 1057 (quoting Farmer, 511 U.S. at 837). “‘If a prison official should have 14 been aware of the risk, but was not, then the official has not violated the Eighth Amendment, no 15 matter how severe the risk.’” Id. (quoting Gibson v. County of Washoe, Nevada, 290 F.3d 1175, 16 1188 (9th Cir. 2002)). 17 circumstantial evidence; in fact, the very obviousness of the risk may be sufficient to establish 18 knowledge. Farmer, 511 U.S. at 842; Wallis v. Baldwin, 70 F.3d 1074, 1077 (9th Cir. 1995). 19 To prove knowledge of the risk, however, the prisoner may rely on Plaintiff does not state a cognizable claim under the Eight Amendment since Officer 20 Lopez’s actions only deprived Plaintiff of meals for a couple days. Such temporary conditions of 21 confinement do not necessarily rise to the level of constitutional violations. See Anderson, 45 22 F.3d 1310, ref. Hoptowit, 682 F.2d at 1258 (abrogated on other grounds by Sandin, 515 U.S. 472 23 (in evaluating challenges to conditions of confinement, length of time the prisoner must go 24 without basic human needs may be considered)). 25 26 4. Supervisory Liability It appears that Plaintiff may desire to pursue the “two known Supervisors” for their 27 knowledge and acquiescence of Officer Lopez’s actions against Muslim inmates. Under section 28 1983, liability may not be imposed on supervisory personnel for the actions of their employees 9 1 under a theory of respondeat superior. Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). “In a § 1983 2 suit or a Bivens action - where masters do not answer for the torts of their servants - the term 3 ‘supervisory liability’ is a misnomer.” Id. Therefore, when a named defendant holds a 4 supervisory position, the causal link between him and the claimed constitutional violation must be 5 specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 6 589 F.2d 438, 441 (9th Cir. 1978), cert. denied, 442 U.S. 941 (1979). 7 To state such a claim, a plaintiff must allege facts that show supervisory defendants either: 8 personally participated in the alleged deprivation of constitutional rights; knew of the violations 9 and failed to act to prevent them; or promulgated or “implemented a policy so deficient that the 10 policy ‘itself is a repudiation of constitutional rights’ and is ‘the moving force of the 11 constitutional violation.’” Hansen v. Black, 885 F.2d 642, 646 (9th Cir. 1989) (internal citations 12 omitted); Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). An unconstitutional policy cannot 13 be proved by a single incident “unless proof of the incident includes proof that it was caused by 14 an existing, unconstitutional policy.” City of Oklahoma City v. Tuttle, 471 U.S. 808, 823-24, 105 15 S.Ct. 2427 (1985). In this instance, a single incident establishes a “policy” only when the 16 decision-maker has “final authority” to establish the policy in question. Collins v. City of San 17 Diego, 841 F.2d 337, 341 (9th Cir. 1988), citing Pembauer v. City of Cincinnati, 475 U.S. 469, 18 106 S.Ct. 1292 (1986). 19 Further, “discrete wrongs B for instance, beatings B by lower level Government actors . . . 20 if true and if condoned by [supervisors] could be the basis for some inference of wrongful intent 21 on [the supervisor’s] part.” Iqbal, 556 U.S. at 683. To this end, the Ninth Circuit has held that, 22 where the applicable constitutional standard is deliberate indifference, a plaintiff may state a 23 claim for supervisory liability based on the supervisor’s knowledge of and acquiescence in 24 unconstitutional conduct by others. Starr v. Baca, 652 F.3d 1202 (9th Cir. 2011). A fundamental 25 premise of this form of liability requires that the actions or inaction by subordinate staff amount 26 to a cognizable claim for violation of a plaintiff’s constitutional rights and that the supervisorial 27 defendant had knowledge of such conduct. Thus, Plaintiff’s allegations against “two known 28 Supervisors” are not cognizable both since they do not sufficient link any individual to specific 10 1 actions as previously discussed, and because Plaintiff had not stated a cognizable claim for 2 deliberate indifference against Officer Lopez upon which to proceed against any supervisors who 3 allegedly knew of and acquiesced in his conduct. 4 E. Conclusion 5 Plaintiff is given the choice to either file a first amended complaint, or to proceed on the 6 claims found cognizable in this order against Officer Lopez for violation of the Free Exercise 7 Clause of the First Amendment and RLUIPA. Plaintiff must either notify the Court of his 8 decision to proceed on these cognizable claims, or file a first amended complaint within 21 days 9 of the service of this order. If Plaintiff needs an extension of time to comply with this order, 10 11 Plaintiff shall file a motion seeking an extension in that same time period. If Plaintiff chooses to file a first amended complaint, he must demonstrate how the 12 conditions complained of have resulted in a deprivation of Plaintiff's constitutional rights. See 13 Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The first amended complaint must allege in 14 specific terms how each named defendant is involved. There can be no liability under section 15 1983 unless there is some affirmative link or connection between a defendant's actions and the 16 claimed deprivation. Rizzo v. Goode, 423 U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 17 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). 18 A first amended complaint should be brief. Fed. R. Civ. P. 8(a). Such a short and plain 19 statement must "give the defendant fair notice of what the . . . claim is and the grounds upon 20 which it rests." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007) quoting Conley v. 21 Gibson, 355 U.S. 41, 47 (1957). Although accepted as true, the "[f]actual allegations must be 22 [sufficient] to raise a right to relief above the speculative level . . . ." Twombly, 550 U.S. 127, 555 23 (2007) (citations omitted). 24 Plaintiff is further informed that an amended complaint supercedes the original, Lacey v. 25 Maricopa County, Nos. 09-15806, 09-15703, 2012 WL 3711591, at *1 n.1 (9th Cir. Aug. 29, 26 2012) (en banc), and must be "complete in itself without reference to the prior or superceded 27 pleading," Local Rule 220. 28 The Court provides Plaintiff with opportunity to amend to cure the deficiencies identified 11 1 by the Court in this order. Noll v. Carlson, 809 F.2d 1446, 1448-49 (9th Cir. 1987). Plaintiff 2 may not change the nature of this suit by adding new, unrelated claims in his first amended 3 complaint. George v. Smith, 507 F.3d 605, 607 (7th Cir. 2007) (no "buckshot" complaints). 4 Based on the foregoing, the Court ORDERS: 5 1. Plaintiff's Complaint is DISMISSED, with leave to amend; 6 2. The Clerk’s Office shall send Plaintiff a civil rights complaint form; 7 3. Within 21 days from the date of service of this order, Plaintiff must either: 8 a. 9 file a first amended complaint curing the deficiencies identified by the Court in this order, or 10 b. notify the Court in writing that he does not wish to file a first amended 11 complaint and wishes to proceed only on the claims identified by the Court 12 as viable/cognizable in this order; and 13 4. If Plaintiff fails to comply with this order, it will be recommended that he be 14 allowed to proceed only on the claims found cognizable herein and that all 15 other claims and Defendants be dismissed with prejudice. 16 17 18 IT IS SO ORDERED. Dated: September 15, 2017 /s/ Jennifer L. Thurston UNITED STATES MAGISTRATE JUDGE 19 20 21 22 23 24 25 26 27 28 12

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.


Why Is My Information Online?