(PC) Rouser v. Newsom et al

Filing 12

ORDER signed by Magistrate Judge Dennis M. Cota on 11/18/22 DIRECTING Plaintiff to file First Amended Complaint within 30 days. (Woodworth, M.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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WILLIAM ROUSER,

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No. 2:22-CV-0032-TLN-DMC-P

Plaintiff,
v.

ORDER

GAVIN NEWSOM, et al.,
Defendants.

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Plaintiff, a prisoner proceeding pro se, brings this civil rights action pursuant to

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42 U.S.C. § 1983. Pending before the Court is Plaintiff’s original complaint, See ECF No. 1.

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The Court is required to screen complaints brought by prisoners seeking relief

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against a governmental entity or 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 it: (1) is frivolous or

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malicious; (2) fails to state a claim upon which relief can be granted; or (3) seeks monetary relief

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from a defendant who is immune from such relief. See 28 U.S.C. § 1915A(b)(1), (2). Moreover,

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the Federal Rules of Civil Procedure require that complaints contain a “. . . short and plain

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statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). This

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means that claims must be stated simply, concisely, and directly. See McHenry v. Renne, 84 F.3d

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1172, 1177 (9th Cir. 1996) (referring to Fed. R. Civ. P. 8(e)(1)). These rules are satisfied if the

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complaint gives the defendant fair notice of the plaintiff’s claim and the grounds upon which it
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rests. See Kimes v. Stone, 84 F.3d 1121, 1129 (9th Cir. 1996). Because Plaintiff must allege with

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at least some degree of particularity overt acts by specific defendants which support the claims,

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vague and conclusory allegations fail to satisfy this standard. Additionally, it is impossible for

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the Court to conduct the screening required by law when the allegations are vague and

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conclusory.

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I. PLAINTIFF’S ALLEGATIONS

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Plaintiff is a prisoner currently housed at the Mule Creek State Prison, located in
Ione, California. See ECF. No. 1, pg. 1. Plaintiff brings suit against the following defendants: (1)

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Gavin Newsom, Governor; (2) Joseph R. Wheeler, Deputy Attorney General; (3) Kathleen

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Allison, Secretary of the California Department of Corrections and Rehabilitations (CDCR); (4)

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Patrick Covello, Warden; (5) M. Safanov, Protestant Chaplain; (6) Rabbie; (7) “Native Chaplain”;

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(8) Carillo, Catholic Chaplain; and (9) Felton, Sergeant. Id. Plaintiff asserts the violation of his

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First Amendment rights in the following four claims.

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First Claim

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In Plaintiff’s first claim, he alleges the violation of his First Amendment rights

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because he is unable to practice his religion, Wicca. See ECF. No. 1, pg. 1. Wicca is based on the

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religious practices of Ancient Egypt. On March 23, 2021, prior to his arrival at Mule Creek State

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Prison, Plaintiff contacted Defendant Covello regarding the “consent decree” of his case, Rouser

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v. White, 825 F.3d 1076 (9th Cir. 2015). See ECF. No. 1, pg. 5. Defendant Covello did not

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comply. Id. The ability to practice his religion involves the following items: candles, incense, fire

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pits, firewood, along with an altar and altar cloth for Sabbaths. Id. All of the listed items were

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denied to Plaintiff. Id. Also, he was only permitted to meet twice a year for Sabbath. Id. Plaintiff

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stated that he has sent Defendants Newsom and Wheeler notices in an attempt for them to remedy

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the situation. Id. at 6. Plaintiff alleges that he was injured by Defendants Newsom and Allison’s

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inaction to ensure compliance with the “consent decree”. Id. at 5. They were aware of the

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violations but continued to deny his ability to practice his religion without the required items. Id.

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Second Claim

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In Plaintiff’s second claim, he alleges the violation of his First Amendment rights

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because the denial of the listed items has placed a substantial burden to practice his religion. See

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ECF. No. 1, pg. 10. Plaintiff alleges that CDCR has known since 1999 that the listed items are

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essential parts to practice his religion, Wicca. Id. As a result of his complaint, the “consent

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decree” permitted Plaintiff to have access to the listed items. Id. Plaintiff emphasizes that he had

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access to these items in previously assigned prisons. Id. He believes that his religion should be

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granted special privileges like the Native Americans. Id. Native Americans have received

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approval by the Religious Review Committee. ECF. No. 1, pg. 29. Native American Spiritual

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Grounds/Sweat Lodges are permitted to have both firepits and “lava” rocks (characterized by

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their light weight and holes for religious ceremonial sweating activities). Id. However, Defendant

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Safanov denied the listed items regardless that Plaintiff informed him of the “consent decree”. Id.

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at 7. Defendant Safanov told Plaintiff that he was only following the guidance of the Attorney

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General’s Office. Id. Furthermore, Plaintiff alleges that Defendant Safanov has refused on

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multiple occasions to process paperwork regarding Wiccan Sabbaths. Id. at 9. Plaintiff believes

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that Defendant Safanov would not refuse Sabbaths for Muslim and Catholic religious practices.

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Id. Lastly, Plaintiff alleges that Defendant Covello promoted a 2015 Memorandum that inhibited

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his ability to practice his religion. Id. at 8. Plaintiff alleges that Defendants Covello and Safanov

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violated his First Amendment rights because he was denied his ability to properly practice his

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religion. Id. at 10.

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Third Claim

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In Plaintiff’s third claim, he alleges the violation of his First Amendment rights

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because of punishment bestowed upon him. See ECF. No. 1, pg. 12. Plaintiff alleges that

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Defendants Wheeler, Covello, and Safanov have entered into a criminal conspiracy to deny him

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of his First Amendment rights. Id. Defendant Wheeler is aware of the “consent decree,” and he

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chose to disregard it. Id. Defendant Wheeler has ensured that it was continuously denied. Id.

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Defendant Wheeler has allegedly instructed the prisons to refuse compliance with the “consent

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decree.” Id. at 11. Plaintiff states that the “consent decree” is well established in the Eastern
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District of the United States. Id. at 12. Plaintiff cites a 2015 Memorandum that inhibits his ability

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to practice his religion. Id. The memorandum states in relevant parts, “A tea light set in a tin base

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or flameless candle may be used during ceremonies as a symbolic representation of fire. The tea

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light shall be used in an approved method to satisfy the religious/spiritual needs of the group.

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Fire pits are not permitted.” Id. at 23. Plaintiff reiterates that there is no reason to justify the

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conspiracy and deny the essential items required to practice his religion. Id. at 12. Plaintiff has

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been injured by the named defendants because his inability to practice his religion has led to deep

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depression and suicidal ideations. Id. Consequently, Plaintiff has been forced to mediate instead.

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Id.

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Fourth Claim

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In Plaintiff’s fourth claim, he alleges the violation of his First Amendment rights

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to practice his religion, therefore, causing discrimination. See ECF. No. 1, pg. 15. When Plaintiff

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arrived at Mule Creek State Prison, he asked Defendant Safanov for the company names where he

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could order altar cloth. Id. Defendant Safanov only provided Plaintiff a form that had no picture

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or description of the altar cloth. Id. It was from a Protestant Chaplain, which had been previously

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approved. Id. Plaintiff ordered an altar cloth that was white and black, which was subsequently

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denied to him. Id. Plaintiff filed a grievance regarding the denial and the response letter stated,

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“The altar cloth was not issued to [Plaintiff] because it was predominantly black in color, with a

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white design on it. The Religious Personal Property Matrix (RPPM) specifically states that the

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altar cloths are to be white, gray, or multicolored.” Id. at 25. Plaintiff has been injured by

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Defendants Safanov and Felton’s actions because by denying him the altar cloth, his religion was

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unfairly discriminated. Id.

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II. DISCUSSION
The Court finds that Plaintiff has stated a cognizable claim for the inability to

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practice his religion, Wicca, against some of the named defendants. Plaintiff asserts the violation

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of his Eighth Amendment rights in four claims and references a prior consent decree in Rouser v.

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White, 825 F.3d 1076 (9th Cir. 2015). Rouser v. White settled that any institution under the
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jurisdiction of CDCR would accommodate [Plaintiff’s] religious needs wherever he is assigned.

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See 825 F.3d 1076 (9th Cir. 2016). In 1992, Plaintiff filed a civil rights complaint along with 30

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Wiccan inmates in the Eastern District of California. Id. Plaintiff stated that Wicca is a bona fide

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religion and should be afforded the same rights as other predominant faiths. Id. Similar to the

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pending complaint before the Court, Plaintiff requested candles, incense, Tarot cards, and the use

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of the prison chapel for Sabbaths. Id. Within the following year, a “consent decree” was adopted

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from Plaintiff’s complaint. Id. The “consent decree” permitted Plaintiff’s requested items along

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with special privileges to report noncompliance directly to the warden. Id. Thereby, following the

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Ninth Circuit’s decision, the Court finds that Plaintiff has stated a cognizable claim for the

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inability practice his religion with the listed items. Plaintiff has stated a cognizable claim against

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Defendant Covello and Safanov, as alleged in his first and second claims.
On his first claim, however, Plaintiff has not stated a cognizable claim against

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Defendants Newsom and Allison because Plaintiff has failed to allege sufficient facts to establish

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liability of supervisory individuals. Lastly, within the remaining third and fourth claim, Plaintiff

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fails to state a cognizable claim against Defendants Wheeler, Felton, “Rabbie,” “Native

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Chaplain,” and Carrillo because the allegations are vague and conclusory, particularly as to

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causation.

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A.

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Free Exercise Claims
“The right to exercise religious practices and beliefs does not terminate at the

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prison door. The free exercise right, however, is necessarily limited by the fact of incarceration,

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and may be curtailed in order to achieve legitimate correctional goals or to maintain prison

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

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see also O’Lone v. Estate of Shabazz, 482 U.S. 342, 348 (1987); Walker v. Beard, 789 F.3d 1125

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(9th Cir. 2015) (upholding prison classifications used to cell inmates with individuals of a

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different race, where placement allegedly interferes with inmate’s religious practice); Shakur v.

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Schriro, 514 F.3d 878, 883-84 (9th Cir. 2008); Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993);

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Friend v. Kolodzieczak, 923 F.2d 126, 127 (9th Cir. 1991). In order to implicate the Free Exercise

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Clause, the prisoner’s belief must be both sincerely held and rooted in religious belief. See
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Shakur, 514 F.3d at 884-85. “A person asserting a free exercise claim must show that the

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government action in question substantially burdens the person’s practice of her religion.” Jones

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v. Williams, 791 F.3d 1023, 1031 (9th Cir. 2015).

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Here, Plaintiff has stated a cognizable claim against Defendant Covello and

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Safanov because they allegedly interfered with his religious practice. Furthermore, Plaintiff has

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told Defendant Covello of the “consent decree” prior to his arrival to Mule Creek State Prison,

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but Defendant Covello still refused his request. Following the same reasoning, Plaintiff has

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requested Defendant Safanov to process paperwork regarding Wiccan Sabbaths, but he refused on

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multiple occasions. Defendant Safanov has also refused an altar cloth. Thus, Plaintiff may

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proceed on these claims.
B.

Supervisory Liability
Supervisory personnel are generally not liable under § 1983 for the actions of their

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employees. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989) (holding that there is no

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respondeat superior liability under § 1983). A supervisor is only liable for the constitutional

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violations of subordinates if the supervisor participated in or directed the violations. See id. The

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Supreme Court has rejected the notion that a supervisory defendant can be liable based on

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knowledge and acquiescence in a subordinate’s unconstitutional conduct because government

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officials, regardless of their title, can only be held liable under § 1983 for his or her own conduct

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and not the conduct of others. See Ashcroft v. Iqbal, 556 U.S. 662, 676 (2009). Supervisory

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personnel who implement a policy so deficient that the policy itself is a repudiation of

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constitutional rights and the moving force behind a constitutional violation may, however, be

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liable even where such personnel do not overtly participate in the offensive act. See Redman v.

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Cnty of San Diego, 942 F.2d 1435, 1446 (9th Cir. 1991) (en banc).

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When a defendant holds a supervisory position, the causal link between such

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defendant and the claimed constitutional violation must be specifically alleged. See Fayle v.

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Stapley, 607 F.2d 858, 862 (9th Cir. 1979); Mosher v. Saalfeld, 589 F.2d 438, 441 (9th Cir.

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1978). Vague and conclusory allegations concerning the involvement of supervisory personnel in

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civil rights violations are not sufficient. See Ivey v. Board of Regents, 673 F.2d 266, 268 (9th
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Cir. 1982). “[A] plaintiff must plead that each Government-official defendant, through the

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official’s own individual actions, has violated the constitution.” Iqbal, 662 U.S. at 676.

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Here, Plaintiff names as defendants Gavin Newsom, the Governor of the State of

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California, and Kathleen Allison, the Director of the California Department of Corrections and

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Rehabilitation. Both are supervisory personnel. Plaintiff has not, however, alleged facts

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indicating these defendants’ personal involvement in the denial of Plaintiff’s First Amendment

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rights pursuant to the consent decree. Plaintiff will be provided an opportunity to amend

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consistent with the standards outlined above.
C.

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Causation
A person deprives another of a constitutional right, “within the meaning of § 1983,

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‘if he does an affirmative act, participates in another’s affirmative act, or omits to perform an act

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which he is legally required to do that causes the deprivation of which complaint is made.’”

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Preschooler II v. Clark Cty. Sch. Bd. of Trs., 479 F.3d 1175, 1183 (9th Cir. 2007) (quoting

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Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978)); see also Redman v. Cty. of San Diego, 942

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F.2d 1435, 1439-40 (9th Cir. 1991) (en banc), abrogated on other grounds by Farmer v. Brennan,

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511 U.S. 825 (1994); Stevenson v. Koskey, 877 F.2d 1435, 1438-39 (9th Cir. 1989); Leer v.

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Murphy, 844 F.2d 628, 633 (9th Cir. 1988). “The requisite causal connection may be established

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when an official sets in motion a ‘series of acts by others which the actor knows or reasonably

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should know would cause others to inflict’ constitutional harms.” Preschooler II, 479 F.3d at 1183

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(quoting Johnson, 588 F.2d at 743); see also Wong v. United States, 373 F.3d 952, 966 (9th Cir.

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2004); Gilbrook v. City of Westminster, 177 F.3d 839, 854 (9th Cir. 1999); Harris v. Roderick,

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126 F.3d 1189, 1196 (9th Cir. 1997); Bateson v. Geisse, 857 F.2d 1300, 1304 (9th Cir. 1988);

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Merritt v. Mackey, 827 F.2d 1368, 1371 (9th Cir. 1987); McRorie v. Shimoda, 795 F.2d 780, 783

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(9th Cir. 1986). This standard of causation “closely resembles the standard ‘foreseeability’

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formulation of proximate cause.” Arnold v. Int’l Bus. Mach. Corp., 637 F.2d 1350, 1355 (9th Cir.

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1981); see also Harper v. City of Los Angeles, 533 F.3d 1010, 1026 (9th Cir. 2008); Wong, 373

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F.3d at 966; Stevenson, 877 F.2d at 1438-39; Leer, 844 F.2d at 634.

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In Plaintiff’s third claim, he alleges that Defendant Wheeler has been made aware

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of the “consent decree” and ensures that his rights are continuously denied. The facts alleged by

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the Plaintiff are vague and conclusory, which provide Defendant with no fair notice of the claim

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and the specific factual grounds upon which it rests. Plaintiff will have the opportunity to amend

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or stand on the original complaint.

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In Plaintiff’s fourth claim, he reiterates his First Amendment claim against

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Defendants Felton, “Rabbie,” “Native Chaplain,” and Carrillo. While Plaintiff may have a viable

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claim against Defendant Felton for the denial of the altar cloth, the grievance stated that the altar

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cloth was not compliant with the RPPM. In Plaintiff chooses, Plaintiff may assert more facts to

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establish the Defendant Felton’s specific acts and the alleged constitutional violation.
Lastly, Plaintiff fails to provide a causal link with “Rabbie,” “Native Chaplain,”

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and Carrillo. Plaintiff simply names them as defendants. Plaintiff’s claim is insufficient to

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provide fair notice of the claim and the grounds upon which it rests. Plaintiff will be provided an

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opportunity to amend or to stand on the original complaint.

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III. CONCLUSION
Because it is possible that the deficiencies identified in this order may be cured by

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amending the complaint, Plaintiff is entitled to leave to amend. See Lopez v. Smith, 203 F.3d

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1122, 1126, 1131 (9th Cir. 2000) (en banc). Plaintiff is informed that, as a general rule, an

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amended complaint supersedes the original complaint. See Ferdik v. Bonzelet, 963 F.2d 1258,

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1262 (9th Cir. 1992). Therefore, if Plaintiff amends the complaint, the Court cannot refer to the

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prior pleading in order to make Plaintiff's amended complaint complete. See Local Rule 220. An

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amended complaint must be complete in itself without reference to any prior pleading. See id.

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If Plaintiff chooses to amend the complaint, Plaintiff 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 complaint must allege in specific terms how

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each named defendant is involved, and must set forth some affirmative link or connection

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between each defendant’s actions and the claimed deprivation. See May v. Enomoto, 633 F.2d
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164, 167 (9th Cir. 1980); Johnson v. Duffy, 588 F.2d 740, 743 (9th Cir. 1978).
Because the complaint appears to otherwise state cognizable claims, if no amended

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complaint is filed within the time allowed therefor, the Court will issue findings and

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recommendations that the claims identified herein as defective be dismissed, as well as such

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further orders as are necessary for service of process as to the cognizable claims.

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Accordingly, IT IS HEREBY ORDERED that Plaintiff may file a first amended
complaint within 30 days of the date of service of this order.

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Dated: November 18, 2022

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DENNIS M. COTA
UNITED STATES MAGISTRATE JUDGE

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