Rognirhar v. Grannis, et al

Filing 17

ORDER signed by District Judge Lonny R. Suko on 3/13/12 ORDERING the Court is directed to enter this Order and forward a copy to Plaintiff with a civil rights complaint form. Pursuant to the Mandate, Defendants S.R. Moore and R. Russell are dismissed. (Becknal, R)

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UNITED STATES DISTRICT COURT
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EASTERN DISTRICT OF CALIFORNIA
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STRIDER ROGNIRHAR,a.k.a.
JONATHAN A. PICOLLO,
NO.

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CV-08-892-LRS

Plaintiff,
ORDER DIRECTING AMENDMENT OF
COMPLAINT PURSUANT TO THE MANDATE

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vs.
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N. GRANNIS and MATTHEW CATE,
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Defendants.
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Pursuant to the Mandate of the Ninth Circuit Court of Appeals

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filed and entered on January 18, 2012 (ECF No. 16), the captioned

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matter has been remanded to this court for further proceedings, which

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necessitates plaintiff to amend his Complaint against defendants

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Grannis and Cate to state a Religious Land Use and Institutionalized

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Persons Act (“RLUIPA”) claim upon which relief may be granted.

The

Ninth Circuit Mandate further states that should California promulgate
its proposed amendment to § 3062(h) after the case is returned to the
district court, the district court will then determine whether the new
provision does, in fact, moot the case.
Rognirhar’s Complaint alleged that defendants violated the
Religious Land Use and Institutionalized Persons Act (“RLUIPA”) and

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the First Amendment by refusing to grant him a religious exemption
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ORDER - 1

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from California’s prison grooming regulation, which prohibits inmates

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from maintaining facial hair that extends more than one-half inch

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outward from the face. See Cal. Code Regs. tit 15, § 3062(h).

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Court notes, however, that subsections (a)-(c) and (e)-(h) of § 3062

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were amended, effective on January 21, 2012.

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to amending his Compliant, Mr. Rognirhar shall explain why his RLUIPA

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claim is not moot against Defendants N. Grannis and Cate in light of

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the recent amendments to § 3062. The Ninth Circuit additionally found

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that Rognirhar’s claims against S.R. Moore and R. Russell were moot.

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This

Therefore, in addition

OPPORTUNITY TO AMEND OR VOLUNTARILY DISMISS COMPLAINT

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Unless it is absolutely clear that amendment would be futile, a

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pro se litigant must be given the opportunity to amend his complaint

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to correct any deficiencies.
(9th Cir. 1987).

Noll v. Carlson, 809 F.2d 1446, 1448

Plaintiff may submit an amended complaint within

sixty (60) days of the date of this Order which includes sufficient
facts to establish federal subject-matter jurisdiction.

Broughton v.

Cutter Laboratories, 622 F.2d 458, 460 (9th Cir. 1980) (citations
omitted).
Plaintiff's amended complaint shall consist of a short and plain

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statement showing he is entitled to relief.

Plaintiff shall allege

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with specificity the following:
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(1)

the names of the persons who caused or personally

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participated in causing the alleged deprivation of his constitutional
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rights,
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(2)

the dates on which the conduct of each Defendant allegedly

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took place, and
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ORDER - 2

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(3)

the specific conduct or action Plaintiff alleges is

unconstitutional.
Furthermore, Plaintiff shall set forth his factual allegations in

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separate numbered paragraphs.

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A COMPLETE SUBSTITUTE FOR (RATHER THAN A MERE SUPPLEMENT TO) THE

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PRESENT COMPLAINT.

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provided by the court as required by the Local Rules for the Eastern

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District of California.

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rewritten or retyped in its entirety, it should be an original and not

THIS AMENDED COMPLAINT WILL OPERATE AS

Plaintiff shall present his complaint on the form

The amended complaint must be legibly

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a copy, it may not incorporate any part of the original complaint by

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reference, and IT MUST BE CLEARLY LABELED THE "FIRST AMENDED

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COMPLAINT" and cause number CV-08-0892-LRS must be written in the

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caption.

Additionally, Plaintiff must submit a copy of the "First

Amended Complaint" for service on each named Defendant, and a copy for
service on the State Attorney General.
PLAINTIFF IS CAUTIONED IF HE FAILS TO AMEND WITHIN 60 DAYS AS
DIRECTED, THE COURT WILL DISMISS THE COMPLAINT FOR FAILURE TO STATE A
CLAIM UNDER 28 U.S.C. §§ 1915(e)(2) and 1915A(b)(1).

Pursuant to 28

U.S.C. § 1915(g), enacted April 26, 1996, a prisoner, who brings three

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or more civil actions or appeals which are dismissed on grounds they
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are legally frivolous, malicious, or fail to state a claim, will be
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precluded from bringing any other civil action or appeal in forma
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pauperis "unless the prisoner is under imminent danger of serious
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physical injury." 28 U.S.C. § 1915(g).
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If Plaintiff chooses to amend his complaint and the court finds
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the amended complaint is frivolous, malicious, or fails to state a
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ORDER - 3

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claim, the amended complaint will be dismissed pursuant to 28 U.S.C.

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§§ 1915A(b)(1) and 1915(e)(2).

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the dismissals under 28 U.S.C. § 1915(g).

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Such a dismissal would count as one of

Alternatively, the court will permit Plaintiff to voluntarily

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dismiss his Complaint pursuant to Rule 41(a), Federal Rules of Civil

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Procedure.

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Dismiss the Complaint within sixty (60) days of the date of this Order

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or risk dismissal under 28 U.S.C. §§ 1915A(b)(1) and 1915(e)(2), and a

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"strike" under 28 U.S.C. § 1915(g).

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Plaintiff may submit the attached Motion to Voluntarily

A voluntary dismissal within this

60 day period will not count as a strike.
Plaintiff is still obligated to pay the full filing fee of
$150.00.

However, if Plaintiff elects to take a voluntary dismissal

within the 60 day period, Plaintiff may simultaneously file a separate
Affidavit and Motion to waive collection of the remaining balance of
the filing fee in this action.
only for good cause shown.

The court will grant such a motion

In no event will prior partial payments be

refunded to Plaintiff.
IT IS SO ORDERED.

The District Court Executive is directed to

enter this Order and forward a copy to Plaintiff with a civil rights
complaint form.

Pursuant to the Mandate, Defendants S.R. Moore and

R. Russell are dismissed.

ECF No. 16 at 3.

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DATED this

13th

day of March, 2012.

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s/Lonny R. Suko

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LONNY R. SUKO
UNITED STATES DISTRICT JUDGE

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ORDER - 4