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