Fields v. Paramo et al

Filing 9

ORDER signed by Magistrate Judge Allison Claire on 12/28/16 ORDERING that plaintiff's request for leave to proceed in forma pauperis (ECF No. 2 ) is GRANTED. Plaintiff is obligated to pay the statutory filing fee of $350.00 for this action. Plaintiff's amended complaint 8 is DISMISSED with 30 days to file an amended complaint. Plaintiff's motion for appointment of counsel (ECF No. 5 ) is DENIED.(Dillon, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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CARLTON FIELDS,

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Plaintiff,

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No. 2:16-cv-1085 AC P

v.

ORDER

DANIEL PARAMO, et al.,

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Defendants.

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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.

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Plaintiff has also filed a request for appointment of counsel. ECF No. 5. This proceeding was

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referred to this court by Local Rule 302 pursuant to 28 U.S.C. § 636(b)(1). Plaintiff’s amended

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complaint is now before the court.

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I.

Request to Proceed In Forma Pauperis
Plaintiff has requested leave to proceed in forma pauperis pursuant to 28 U.S.C. § 1915.

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ECF No. 2. Plaintiff’s application makes the showing required by 28 U.S.C. § 1915(a)(1) and

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(2). Accordingly, the request to proceed in forma pauperis will be granted.

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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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II.

Statutory Screening of Prisoner Complaints
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 or malicious,” that fail to state a claim upon which relief may be granted, or that seek

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monetary relief from a defendant who is immune from such relief. 28 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.

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A complaint, or portion thereof, should only be dismissed for failure to state a claim upon

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which relief may be granted if it appears beyond doubt that plaintiff can prove no set of facts in

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support of the claim or claims that would entitle him to relief. Hishon v. King & Spalding, 467

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U.S. 69, 73 (1984) (citing Conley v. Gibson, 355 U.S. 41, 45-46 (1957)); Palmer v. Roosevelt

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Lake Log Owners Ass’n, 651 F.2d 1289, 1294 (9th Cir. 1981). In reviewing a complaint under

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this standard, the court must accept as true the allegations of the complaint in question, Hosp.

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Bldg. Co. v. Trs. of Rex Hosp., 425 U.S. 738, 740 (1976), construe the pleading in the light most

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favorable to the plaintiff, and resolve all doubts in the plaintiff’s favor, Jenkins v. McKeithen, 395

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U.S. 411, 421 (1969).
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III.

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Amended Complaint
In his amended complaint, plaintiff contends that defendant “Doe #1,” the urologist at San

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Joaquin hospital, violated his First and Fourteenth Amendment rights by failing to provide him

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with a circumcision for religious purposes. ECF No. 8 at 3. In addition, plaintiff alleges that “all

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other named defendants” 1 violated his due process rights by denying his health care appeals. Id.

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Plaintiff seeks an order requiring the San Joaquin hospital to circumcise him. Id.

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A.

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While plaintiff may be able to state a viable First Amendment claim for the denial of his

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First Amendment Claim

request for a religious circumcision, plaintiff has identified only a single Doe defendant. ECF

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No. 8 at 3. Due to the impossibility of serving an unknown individual, the court will grant

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plaintiff leave to file a second amended complaint to provide the real name for the “Doe #1”

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defendant.

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If plaintiff elects to file a second amended complaint in this action, he is advised of the

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following legal standards that govern the First Amendment claim he is attempting to present.

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First, as an initial matter, plaintiff must allege an actual link or connection between the named

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defendant and the denial of plaintiff’s request for a religious circumcision. Rizzo v. Goode, 423

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U.S. 362 (1976); May v. Enomoto, 633 F.2d 164, 167 (9th Cir. 1980). “One’s First Amendment

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“right to exercise religious practices and beliefs does not terminate at the prison door.” McElyea

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v. Babbitt, 833 F.2d 196, 197 (9th Cir. 1987). Rather, “[i]nmates . . . retain protections afforded

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by the First Amendment, including its directive that no law shall prohibit the free exercise of

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religion.” O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987) (internal quotations and

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citations omitted). However, plaintiff is advised that in order to trigger the protections of the Free

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The other named defendants are A. Altschuler (AGPA), Health Care Appeals Office, Mule
Creek State Prison; J. Lewis, Deputy Director, Policy and Risk Management Services, California
Correctional Health Care Service; W. David Smiley, Chief Executive Officer, Health Care
Services, Mule Creek State Prison; and C. Smith, Chief Physician and Surgeon, Mule Creek State
Prison. Defendants’ respective job titles are identified in the exhibits to the original complaint.
See ECF No. 1 at 5, 7-9, 14. These exhibits were not attached to the amended complaint. In light
of plaintiff’s pro se status, the court will consider the amended complaint as if those exhibits were
attached.
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Exercise Clause of the First Amendment, he must allege and show that his belief is “sincerely

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held” and his needs are “rooted in religious belief.” Shakur v. Schriro, 514 F.3d 878, 884 (9th

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Cir. 2008) (citations omitted). Thus, if plaintiff decides to pursue this claim in his second

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amended complaint, he should allege facts indicating whether he practices the Jewish faith and

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whether circumcision is a need rooted in his religious belief. Plaintiff is further advised that,

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under the First Amendment, a prison regulation infringing on a prisoner’s free exercise of religion

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is valid if it is reasonably related to legitimate penological interests. Turner v. Safley, 482 U.S.

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78, 89 (1987).

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B.

Fourteenth Amendment Claim

Plaintiff also asserts that defendant Doe #1 violated his Fourteenth Amendment rights by

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denying plaintiff’s request for a religious circumcision. In addition to failing to identify

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defendant Doe, plaintiff has failed to state a cognizable Equal Protection claim.

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Behind bars, the Equal Protection Clause of the Fourteenth Amendment affords a prisoner

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“a reasonable opportunity of pursuing his faith comparable to the opportunity afforded fellow

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prisoners who adhere to conventional religious precepts.” Shakur, 514 F.3d at 891 (quoting Cruz

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v. Beto, 405 U.S. 319, 322 (1972)). However, prisons “are not required to provide identical

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accommodations to inmates of every religious persuasion.” Rouser v. White, 630 F. Supp.2d

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1165, 1200 (E.D. Cal. 2009) (citing Cruz, 405 U.S. at 322 n.2). To make an Equal Protection

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claim, an inmate must show that the prison treated him differently from a similarly situated class,

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raising an inference of discriminatory purpose. Shakur, 514 F.3d at 891; Rupe v. Cate, 688 F.

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Supp. 2d 1035, 1049 (E.D. Cal. 2010). In prison, an inmate’s Equal Protection claim only

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succeeds where the prison’s disparate treatment was not “reasonably related to legitimate

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penological interests.” Shakur, 514 F.3d at 891; see also Rupe, 688 F. Supp. 2d at 1049.

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Allegations of disparate treatment, however, cannot be merely conclusory; they must have some

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specificity and factual support. See Rouser, 630 F. Supp. 2d at 1200.

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Plaintiff has failed to allege any facts showing he was intentionally treated differently

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from similarly situated inmates or that the denial of his request to be circumcised was not

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reasonably related to legitimate penological interests. Accordingly, plaintiff’s Fourteenth
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Amendment claim will be dismissed. The court will, however, grant leave to file a second

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amended complaint.

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C.

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Plaintiff alleges a due process violation against defendants Altschuler, Lewis, Smiley, and

Due Process Claim

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Smith predicated on their denial of plaintiff’s health care appeals. ECF No. 8 at 3. Plaintiff is

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informed that prison staff actions in responding to plaintiff’s health care appeals alone cannot

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give rise to any claim for relief under § 1983 for violation of due process. “[A prison] grievance

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procedure is a procedural right only, it does not confer any substantive right upon the inmates.

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Hence, it does not give rise to a protected liberty interest requiring the procedural protections

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envisioned by the fourteenth amendment.” Azeez v. DeRobertis, 568 F. Supp. 8, 10 (N.D. Ill.

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1982). A prisoner does not have a “separate constitutional entitlement to a specific prison

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grievance procedure.” Ramirez v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (citing Mann v.

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Adams, 855 F.2d 639, 640 (9th Cir. 1988)).

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Plaintiff may not assert a constitutional violation based solely on a claim that defendants

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improperly handled and denied his health care appeals. Accordingly, plaintiff’s due process

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claims against defendants Altschuler, Lewis, Smiley, and Smith will be dismissed.

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D.

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To the extent plaintiff seeks to assert an Eighth Amendment claim arising from prison

Eighth Amendment

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officials’ failure to provide him with a circumcision for religious purposes, the claim will be

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dismissed.2

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The Eighth Amendment protects prisoners from inhumane methods of punishment and

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from inhumane conditions of confinement. Morgan v. Morgensen, 465 F.3d 1041, 1045 (9th Cir.

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2006). 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) (citations and quotations omitted). In order to state a claim for violation of

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In the original complaint, plaintiff asserted an Eighth Amendment claim. ECF No. 1 at 3.
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the Eighth Amendment, the plaintiff must allege facts sufficient to support a claim that prison

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officials knew of and disregarded a substantial risk of serious harm to the plaintiff. Farmer v.

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Brennan, 511 U.S. 825, 847 (1994); Frost v. Agnos, 152 F.3d 1124, 1128 (9th Cir. 1998).

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Plaintiff’s desire for a circumcision for religious reasons does not support a claim for

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violation of the Eighth Amendment because prison officials are not knowingly disregarding a

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substantial risk of harm to plaintiff’s health. Farmer, 511 U.S. at 837; see also Adsit v. Kaplan,

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410 F. Supp. 2d 776, 782 (W.D. Wis. Jan. 19, 2006) (denial of free circumcision does not violate

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Eighth Amendment).

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E.

Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA)

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Although the amended complaint does not specifically assert a RLUIPA claim, the

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exhibits attached to plaintiff’s original complaint reference RLUIPA, ECF No. 1 at 6. If plaintiff

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elects to assert a RLUIPA claim in his second amended complaint, he is advised of the following

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legal standards that govern a RLUIPA claim. RLUIPA prohibits prison officials from imposing a

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substantial burden on an inmate’s religious exercise, unless it is in furtherance of a compelling

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government interest, and is the least restrictive means of furthering that compelling government

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interest. 42 U.S.C. § 2000cc-1(a)(1)-(2). “A prison policy that ‘intentionally puts significant

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pressure on inmates to abandon their religious beliefs imposes a substantial burden on the

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inmate’s religious practices.’” Shakur, 514 F.3d at 889 (quoting Warsoldier v. Woodford, 418

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F.3d 989, 996 (9th Cir. 2005)). Plaintiff is advised that if he seeks to allege a RLUIPA claim in

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his second amended complaint, plaintiff must allege facts supporting his claim that defendants

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were responsible for or participated in the burdening of plaintiff’s religious exercise. Although

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accepted as true, the “[f]actual allegations must be [sufficient] to raise a right to relief above the

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speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citations omitted).

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IV.

Leave to Amend
For the reasons set forth above, plaintiff’s amended complaint is dismissed, with leave to

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file a second amended complaint that meets the substantive legal requirements set forth herein.

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If plaintiff chooses to file a second amended complaint, plaintiff must demonstrate how

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the denial of his request for a religious circumcision have resulted in a deprivation of plaintiff’s
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federal constitutional or statutory rights. See Ellis v. Cassidy, 625 F.2d 227 (9th Cir. 1980).

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Also, the second amended complaint must allege in specific terms how each named defendant is

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

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or connection between a defendant’s actions and the claimed deprivation. Rizzo, 423 U.S. 370-

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71; May, 633 F.2d at 167; Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978). Further, “there is

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no pure respondeat superior liability under § 1983, [and] a supervisor [may only be held] liable

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for the constitutional violations of subordinates ‘if the supervisor participated in or directed the

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violations, or knew of the violations and failed to act to prevent them.’” Hydrick v. Hunter, 500

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F.3d 978, 988 (9th Cir. 2007), vacated and remanded on other grounds, 556 U.S. 1256 (2009)

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(quoting Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989)).

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In addition, plaintiff is informed that the court cannot refer to a prior pleading in order to

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

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complaint be complete in itself without reference to any prior pleading. This is because, as a

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general rule, an amended complaint supersedes the original complaint. See Loux v. Rhay, 375

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F.2d 55, 57 (9th Cir. 1967). Once plaintiff files a second amended complaint, the prior pleadings

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no longer serve any function in the case. Therefore, in a second amended complaint, as in an

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

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alleged.

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V.

Motion for Appointment of Counsel
Plaintiff has requested appointment of counsel. ECF No. 5. The United States Supreme

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Court has ruled that district courts lack authority to require counsel to represent indigent prisoners

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in § 1983 cases. Mallard v. United States Dist. Court, 490 U.S. 296, 298 (1989). In certain

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exceptional circumstances, the district court may request the voluntary assistance of counsel

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pursuant to 28 U.S.C. § 1915(e)(1). Terrell v. Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991);

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Wood v. Housewright, 900 F.2d 1332, 1335-36 (9th Cir. 1990).

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The test for exceptional circumstances requires the court to evaluate the plaintiff’s

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likelihood of success on the merits and the ability of the plaintiff to articulate his claims pro se in

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light of the complexity of the legal issues involved. See Wilborn v. Escalderon, 789 F.2d 1328,
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1331 (9th Cir. 1986); Weygandt v. Look, 718 F.2d 952, 954 (9th Cir. 1983). Circumstances

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common to most prisoners, such as lack of legal education and limited law library access, do not

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establish exceptional circumstances that would warrant a request for voluntary assistance of

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counsel.

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In the present case, the court does not find the required exceptional circumstances. Even

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if it is assumed that plaintiff is not well versed in the law and that he has made serious allegations

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which, if proved, would entitle him to relief, his case is not exceptional. The court is faced with

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similar cases almost daily. Further, based on a review of the record in this case and the court’s

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instructions to plaintiff regarding the substantive law and what he will have to do to sufficiently

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plead his claims, the court does not find that plaintiff lacks the capability to articulate his claims.

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In accordance with the above, IT IS HEREBY ORDERED that:

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1. Plaintiff’s request for leave to proceed in forma pauperis (ECF No. 2) is granted.

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

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is assessed an initial partial filing fee in accordance with the provisions of 28 U.S.C. §

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1915(b)(1). All fees shall be collected and paid in accordance with this court’s order to the

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Director of the California Department of Corrections and Rehabilitation filed concurrently

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herewith.

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3. Plaintiff’s amended complaint (ECF No. 8) is dismissed.

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

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

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of Civil Procedure, and the Local Rules of Practice; the second amended complaint must bear the

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docket number assigned this case and must be labeled “Second Amended Complaint”; plaintiff

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must file an original and two copies of the second amended complaint; failure to file a second

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

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be dismissed.

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5. Plaintiff’s motion for appointment of counsel (ECF No. 5) is denied.
DATED: December 28, 2016

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