Womack v. Perry

Filing 9

ORDER signed by Magistrate Judge Carolyn K. Delaney on 11/10/2015 GRANTING plaintiff's 2 motion to proceed IFP. Plaintiff shall pay the $350.00 filing fee in accordance with the concurrent CDCR order. Plaintiff's complaint is DISMISSED with leave to amend within 30 days. The Clerk shall send petitioner the form for filing a civil rights action. Plaintiff's request to certify this case as a class action lawsuit is DENIED.(Yin, K)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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RODNEY JEROME WOMACK,

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No. 2:15-cv-1858 JAM CKD (TEMP) (PC)

Plaintiff,
v.

ORDER

WARDEN PERRY,
Defendant.

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Plaintiff is a state prisoner proceeding pro se. Plaintiff seeks relief pursuant to 42 U.S.C.

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§ 1983 and has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915. This

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proceeding was referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1).

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Plaintiff has submitted a declaration that makes the showing required by 28 U.S.C. §
1915(a). Accordingly, the request to proceed in forma pauperis will be granted.
Plaintiff is required to pay the statutory filing fee of $350.00 for this action. 28 U.S.C. §§

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1914(a), 1915(b)(1). By this order, plaintiff will be assessed an initial partial filing fee in

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accordance with the provisions of 28 U.S.C. § 1915(b)(1). By separate order, the court will direct

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the appropriate agency to collect the initial partial filing fee from plaintiff’s trust account and

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forward it to the Clerk of the Court. Thereafter, plaintiff will be obligated for monthly payments

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of twenty percent of the preceding month’s income credited to plaintiff’s prison trust account.

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These payments will be forwarded by the appropriate agency to the Clerk of the Court each time
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the amount in plaintiff’s account exceeds $10.00, until the filing fee is paid in full. 28 U.S.C. §

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1915(b)(2).

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SCREENING REQUIREMENT

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

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governmental entity or an officer or employee of a governmental entity. See 28 U.S.C. §

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1915A(a). The court must dismiss a complaint or portion thereof if the prisoner has raised claims

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that are legally “frivolous or malicious,” that fail to state a claim upon which relief may be

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granted, or that seek monetary relief from a defendant who is immune from such relief. See 28

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U.S.C. § 1915A(b)(1) & (2).

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A claim is legally frivolous when it lacks an arguable basis either in law or in fact.

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Neitzke v. Williams, 490 U.S. 319, 325 (1989); Franklin v. Murphy, 745 F.2d 1221, 1227-28 (9th

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Cir. 1984). The court may, therefore, dismiss a claim as frivolous where it is based on an

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indisputably meritless legal theory or where the factual contentions are clearly baseless. Neitzke,

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490 U.S. at 327. The critical inquiry is whether a constitutional claim, however inartfully

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pleaded, has an arguable legal and factual basis. See Jackson v. Arizona, 885 F.2d 639, 640 (9th

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Cir. 1989); Franklin, 745 F.2d at 1227.
Rule 8(a)(2) of the Federal Rules of Civil Procedure “requires only ‘a short and plain

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statement of the claim showing that the pleader is entitled to relief,’ in order to ‘give the

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defendant fair notice of what the . . . claim is and the grounds upon which it rests.’” Bell Atlantic

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Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).

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However, in order to survive dismissal for failure to state a claim a complaint must contain more

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than “a formulaic recitation of the elements of a cause of action;” it must contain factual

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allegations sufficient “to raise a right to relief above the speculative level.” Bell Atlantic, 550

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U.S. at 555. In reviewing a complaint under this standard, the court must accept as true the

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allegations of the complaint in question, Hospital Bldg. Co. v. Rex Hospital Trustees, 425 U.S.

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738, 740 (1976), construe the pleading in the light most favorable to the plaintiff, and resolve all

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doubts in the plaintiff’s favor. Jenkins v. McKeithen, 395 U.S. 411, 421 (1969).

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The Civil Rights Act under which this action was filed provides as follows:

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Every person who, under color of [state law] . . . subjects, or causes
to be subjected, any citizen of the United States . . . to the
deprivation of any rights, privileges, or immunities secured by the
Constitution . . . shall be liable to the party injured in an action at
law, suit in equity, or other proper proceeding for redress.

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42 U.S.C. § 1983. The statute requires that there be an actual connection or link between the

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actions of the defendants and the deprivation alleged to have been suffered by plaintiff. See

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Monell v. Department of Social Servs., 436 U.S. 658 (1978); Rizzo v. Goode, 423 U.S. 362

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(1976). “A person ‘subjects’ another to the deprivation of a constitutional right, within the

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meaning of § 1983, if he does an affirmative act, participates in another’s affirmative acts or

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omits to perform an act which he is legally required to do that causes the deprivation of which

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complaint is made.” Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).

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Moreover, supervisory personnel are generally not liable under § 1983 for the actions of

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their employees under a theory of respondeat superior and, therefore, when a named defendant

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holds a supervisorial position, the causal link between him and the claimed constitutional

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violation must be specifically alleged. See Fayle v. Stapley, 607 F.2d 858, 862 (9th Cir. 1979);

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Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir. 1978). Vague and conclusory allegations

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concerning the involvement of official personnel in civil rights violations are not sufficient. See

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Ivey v. Board of Regents, 673 F.2d 266, 268 (9th Cir. 1982).

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PLAINTIFF’S COMPLAINT

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In his complaint, plaintiff has identified Warden Perry as the sole defendant in this action.

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Plaintiff alleges that defendant Perry has been denying inmates on C-Yard Muslim services every

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Friday for the past eight months. In terms of relief, plaintiff asks the court to certify this case as a

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class action lawsuit. Plaintiff also seeks injunctive relief and monetary damages. (Compl. at 3.)

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DISCUSSION

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The allegations in plaintiff’s complaint are so vague and conclusory that the court is

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unable to determine whether the current action is frivolous or fails to state a claim for relief. The

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complaint does not contain a short and plain statement as required by Federal Rule of Civil

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Procedure 8(a)(2). Although the Federal Rules adopt a flexible pleading policy, a complaint must
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give fair notice to the defendants and must allege facts that support the elements of the claim

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plainly and succinctly. Jones v. Community Redev. Agency, 733 F.2d 646, 649 (9th Cir. 1984).

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Plaintiff must allege with at least some degree of particularity overt acts which defendants

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engaged in that support his claims. Id. Because plaintiff has failed to comply with the

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requirements of Federal Rule of Civil Procedure 8(a)(2), his original complaint must be

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dismissed. The court will, however, grant plaintiff leave to file an amended complaint.

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If plaintiff chooses to file an amended complaint, he must allege facts demonstrating how

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the conditions complained of resulted in a deprivation of his federal constitutional or statutory

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rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980). The amended complaint must allege in

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specific terms how each named defendant was involved in the deprivation of plaintiff’s rights.

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There can be no liability under 42 U.S.C. § 1983 unless there is some affirmative link or

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connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. 362; May

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v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980); Johnson, 588 F.2d at 743. Vague and conclusory

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allegations of official participation in civil rights violations are not sufficient. Ivey, 673 F.2d at

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268.

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Insofar as plaintiff asks the court to certify this case as a class action lawsuit, the court

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will deny his request. Plaintiff is a non-lawyer proceeding without counsel. It is well established

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that a pro se litigant may not appear as an attorney for others. See C.E. Pope Equity Trust v.

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United States, 818 F.2d 696, 697 (9th Cir. 1987); McShane v. United States, 366 F.2d 286, 288

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(9th Cir. 1966). This rule becomes almost absolute where, as here, the putative class

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representative is incarcerated and proceeding pro se. See Oxendine v. Williams, 509 F.2d 1405,

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1407 (4th Cir. 1975); Booker v. Powers, Civ. S-06-1907 MCE KJM P, 2007 WL 470922 at *2

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(E.D. Cal. Feb. 9, 2007). In direct terms, plaintiff cannot “fairly and adequately protect the

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interests of the class” as required by Rule 23(a)(4) of the Federal Rules of Civil Procedure.

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Turning now to plaintiff’s substantive claims, in any amended complaint that plaintiff

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elects to file, he will need to clarify what constitutional or federal statutory right he believes

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defendant Perry has violated and support each claim with factual allegations about the

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defendant’s actions. Insofar as plaintiff wishes to proceed on a claim under the First Amendment
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Free Exercise Clause, he is advised that “convicted prisoners do not forfeit all constitutional

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protections by reason of their conviction and confinement in prison.” Bell v. Wolfish, 441 U.S.

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520, 545 (1979). However, a prisoner’s First Amendment rights are “necessarily limited by the

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fact of incarceration, and may be curtailed in order to achieve legitimate correctional goals or to

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maintain prison security.” McElyea v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987) (per curiam).

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In particular, a prisoner’s constitutional right to free exercise of religion must be balanced against

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the state’s right to limit First Amendment freedoms in order to attain valid penological objectives

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such as rehabilitation of prisoners, deterrence of crime, and preservation of institutional security.

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See O’Lone v. Shabazz, 482 U.S. 342, 348 (1987); Pell v. Procunier, 417 U.S. 817, 822-23

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(1974). These competing interests are balanced by applying a “reasonableness test.” McElyea,

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833 F.2d at 197. “Regulations that impinge on an inmate’s constitutional rights will be upheld if

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they are reasonably related to legitimate penological interests.” Henderson v. Terhune, 379 F.3d

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709, 712 (9th Cir. 2004) (citing Turner v. Safley, 482 U.S. 78 (1987)).

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Insofar as plaintiff wishes to proceed on a claim under the Religious Land Use and

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Institutionalized Persons Act (“RLUIPA”), he is advised that the government is prohibited from

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imposing “a substantial burden on the religious exercise of a person residing in or confined to an

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institution . . . even if the burden results from a rule of general applicability.” 42 U.S.C. §

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2000cc-1(a). The plaintiff bears the initial burden of demonstrating that an institution’s actions

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have placed a substantial burden on plaintiff’s free exercise of religion. To state a cognizable

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claim under RLUIPA, plaintiff must specify how the defendant denied him access to religious

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services. In this regard, plaintiff must link any RLUIPA claim to the defendant’s specific

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conduct. Plaintiff is cautioned that monetary damages are not available under RLUIPA against

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state officials sued in their individual capacities. See Jones v. Williams, ___ F.3d ___, ___, 2015

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WL 3916942 at *3 (9th Cir. 2015) (“RLUIPA does not authorize suits for damages against state

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officials in their individual capacities because individual state officials are not recipients of

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federal funding and nothing in the statute suggests any congressional intent to hold them

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individually liable.”). RLUIPA only authorizes suits against a person in his or her official or

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governmental capacity. See Wood v. Yordy, 753 F.3d 899, 904 (9th Cir. 2014); see also Walker
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v. Beard, __ F.3d __, ___, 2015 WL 3773072 at *10 n.4 (9th Cir. June 18, 2015) (defendants

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have Eleventh Amendment immunity from official capacity damages claims under RLUIPA);

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Holley v. Cal. Dep’t of Corrs., 599 F.3d 1108, 1114 (9th Cir. 2014) (same).

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Plaintiff is informed that the court cannot refer to a prior pleading in order to make

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plaintiff’s amended complaint complete. Local Rule 220 requires that an amended complaint be

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complete in itself without reference to any prior pleading. This is because, as a general rule, an

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amended complaint supersedes the original complaint. See Loux v. Rhay, 375 F.2d 55, 57 (9th

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Cir. 1967). Once plaintiff files an amended complaint, the original pleading no longer serves any

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function in the case. Therefore, in any amended complaint plaintiff elects to file, as in an original

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complaint, each claim and the involvement of each defendant must be sufficiently alleged.

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CONCLUSION

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Accordingly, IT IS HEREBY ORDERED that:

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1. Plaintiff’s motion to proceed in forma pauperis (Doc. No. 2) is granted.

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2. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. The fee

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shall be collected and paid in accordance with this court’s order to the Director of the California

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Department of Corrections and Rehabilitation filed concurrently herewith.

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3. Plaintiff’s complaint is dismissed.

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4. Plaintiff is granted thirty days from the date of service of this order to file an amended

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complaint that complies with the requirements of the Civil Rights Act, the Federal Rules of Civil

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Procedure, and the Local Rules of Practice; the amended complaint must bear the docket number

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assigned to this case and must be labeled “Amended Complaint”; failure to file an amended

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complaint in accordance with this order will result in a recommendation that this action be

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dismissed without prejudice.
5. The Clerk of the Court is directed to send plaintiff the court’s form for filing a civil

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rights action.

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6. Plaintiff’s request to certify this case as a class action lawsuit is denied.
Dated: November 10, 2015

_____________________________________
CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE

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