Smith v. Davis et al

Filing 4

ORDER OF PARTIAL DISMISSAL; ORDER OF SERVICE; DIRECTING DEFENDANTS TO FILE DISPOSITIVE MOTION OR NOTICE REGARDING SUCH MOTION. Signed by Judge Hon. Lucy H. Koh on 3/21/2016. (**Includes service instructions for the Clerk's Office**) (sms, COURT STAFF) (Filed on 3/22/2016)

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FIL.ED

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MAR 2 2 2016

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SUSAI' ' S'JONG
CLERK, U.S : .:iTRICT COURT

NORTHERN OISTR1CT OF CALIFORNIA
SAN JOSE

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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA

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ANTHONY BERNARD SMITH, JR.,

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Plaintiff,

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vs.

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WARDEN RON DAVIS, et al.,

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Defendants.
__________________________))

No. C 16-0156 LHK (PR)
ORDER OF PARTIAL
DISMISSAL; ORDER OF
SERVICE; DIRECTING
DEFENDANTS TO FILE
DISPOSITIVE MOTION OR
NOTICE REGARDING SUCH
MOTION

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Plaintiff, a California state prisoner proceeding pro se, filed a civil rights complaint under
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42 U.S.C. § 1983. For the reasons stated below, the court dismisses two defendants because
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plaintiff has failed to state a claim against them, and orders service upon the remaining
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defendants. The court directs the surviving defendants to file a dispositive motion or notice
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regarding such motion.
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DISCUSSION

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A.

Standard of Review

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A federal court must conduct a preliminary screening in any case in which a prisoner
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seeks redress from a governmental entity or officer or employee of a governmental entity. See
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28 U.S.C. § 1915A(a). In its review, the court must identify any cognizable claims and dismiss
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any claims that are frivolous, malicious, fail to state a claim upon which relief may be granted or

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seek monetary relief from a defendant who is immune from such relief. See 28 U.S.C.
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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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§ 1915A(b)(1), (2). Prose pleadings must, however, be liberally construed. See Balistreri v.
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Pacifica Police Dep't., 901 F.2d 696,699 (9th Cir. 1988).

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To state a claim under 42 U.S.C. § 1983, a plaintiff must allege two essential elements:

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(1) that a right secured by the Constitution or laws of the United States was violated, and (2) that

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the alleged violation was committed by a person acting under the color of state law. See West v.

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Atkins, 487 U.S. 42,48 (1988).

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Legal Claims

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Plaintiff is a practicing Muslim incarcerated at San Quentin State Prison ("SQSP"). As

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part of his religious beliefs, plaintiff must pray five times daily at specified times: specifically at

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Zhur (noon) and Asr (afternoon) prayer during "opening dayroom" when all prisoners are

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allowed to participate in recreational activities. By doing so, plaintiff believes that he will

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receive between 25-27 times more blessings during a congregational prayer than during

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individual prayer. At the time, SQSP staff had imposed a rule prohibiting SQSP Muslim inmates

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from offering congregational prayer in groups of more than 4 inmates at a time.

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Initially, Muslim prisoners on the West Block at SQSP were not permitted to engage in

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congregational prayer groups with more than 4 Muslim prisoners during "open dayroom" even

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though a group of about 25 Christian prisoners was simultaneously offering a congregational

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prayer and was not interrupted by correctional staff. Plaintiff and other Muslim prisoners filed a

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group administrative appeal, complaining that they were being discriminated against based on

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their religion. At the third level of review, plaintiffs appeal was granted, and the complaint was

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referred to the Religious Review Committee. On May 14, 2014, the Religious Review

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Committee decided to allow Muslim prisoners at SQSP to participate in congregational prayer of

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no more than 15 prisoners during "open dayroom."

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However, on November 17, 2014, defendants Albritton and Kluger issued an order that

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congregational Zhur and Asr prayer during open dayroom was no longer permitted. Plaintiff was

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told that Muslim prisoners could have one congregational prayer per day during "open

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dayroom." Muslim inmate Khalifah E.D. Saifullah filed an administrative appeal the next day

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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against defendants. At the third level of review, the appeal was granted, and the warden was
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ordered to conduct another Religious Review Committee to modifY the May 14, 2014 order by

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offering congregational prayer five times a day to Muslim prisoners, especially during "open

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dayroom."

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In the underlying federal complaint, plaintiff alleges that prison officials have refused to

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comply with this third level of review directive, and have not conducted a Religious Review

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Committee meeting. Plaintiff also alleges that Muslim prisoners are currently not allowed to

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meet in groups of 5 or more for congregational prayer groups while Christians and Jewish

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prisoners are permitted to meet for congregational prayer as often as they want during "open

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dayroom."
Liberally construed, plaintiff has stated cognizable claims that defendants Albritton and

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Kluger violated the First Amendment Free Exercise Clause, First Amendment Establishment

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Clause, First Amendment right against retaliation, Fourteenth Amendment right to equal

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protection, and the Religious Land Use and Institutionalized Persons Act.

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Plaintiffs allegations against defendants Davis and Mitchell, however, are dismissed

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with prejudice. According to plaintiff, Mitchell was assigned to the second level of review for

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Inmate Saifullah's November 18, 2014 administrative appeal, but did not ultimately rule on the

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appeal. Instead, Davis conducted the second level review and denied the appeal at the second

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level. (Compl. at 7.) Plaintiffthen succeeded at the third level of review, but does not identifY

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the third level reviewers.

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Plaintiff also states that Davis and Mitchell have not complied with the third level of

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review's decision to "determine, establish, and make available the least restrict alternative

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through the [Religious Review Committee] to allow plaintiff and similarly situated Muslim

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prisoners to offer more than one congregational prayer in West Block .... " (Id. at 7-8.)

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However, Davis and Mitchell's role was limited to participating in the second level of review.

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Neither participated in the actual restriction of the any prisoner's congregational prayer.

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Plaintiffs allegations fail to state a cognizable claim against Davis and Mitchell.

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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Liability may be imposed on an individual defendant under 42 U.S.C. § I983 only if the plaintiff
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can show that the defendant's actions both actually and proximately caused the deprivation of a

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federally protected right. See Lemire v. Cal. Dept. of Corrections & Rehabilitation, 726 F.3d

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I062, I085 (9th Cir. 2013); Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. I988). Here, plaintiff

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fails to show causation. According to plaintiff, neither Davis nor Mitchell were involved in the

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November I4, 20 I4 directive to limit the number of congregational prayers or the number of

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Muslim prisoners per congregational prayer, which is the event from which plaintiff's claims

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stem. In fact, Davis and Mitchell could not have caused the alleged violations because Davis

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and Mitchell were not involved until after the alleged violations had already occurred. See

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Taylor v. List, 880 F .2d I 040, I 045 (9th Cir. I989) ("A supervisor is only liable for

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constitutional violations of his 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."); Leer, 844 F.2d at 633

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("A person deprives another of a constitutional right, within the meaning of section I983, if he

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does an affirmative act, participates in another's affirmative acts, or omits to perform an act

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which he is legally required to do, that causes the deprivation of which the plaintiff complains")

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(emphasis in original). Therefore, plaintiffhas failed to state a cognizable claim for relief

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against Davis and Mitchell.

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To the extent plaintiff alleges that Davis and Mitchell are liable for denying plaintiff's

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administrative appeal, there is no constitutional right to a prison grievance system. See Ramirez

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v. Galaza, 334 F.3d 850, 860 (9th Cir. 2003) (holding that prisoners lack a separate

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constitutional entitlement to a specific prison grievance system). Consequently, the denial of

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plaintiff's administrative appeal cannot be the basis of liability under Section I983. See, e.g.,

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Wright v. Shapirshteyn, No. CV I-06-0927-MHM, 2009 WL 36I95I, *3 (E.D. Cal. Feb.l2,

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2009) (noting that "where a defendant's only involvement in the allegedly unconstitutional

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conduct is the denial of administrative grievances, the failure to intervene on a prisoner's behalf

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to remedy alleged unconstitutional behavior does not amount to active unconstitutional behavior

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for purposes of§ I983"); George v. Smith, 507 F.3d 605, 609-IO (7th Cir. 2007) (holding that

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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only persons who cause or participate in civil rights violations can be held responsible and that
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"[r]uling against a prisoner on an administrative complaint does not cause or contribute to the

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violation").

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A district court must afford pro se prisoner litigants an opportunity to amend their

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complaints to correct any deficiencies in their complaints. See Lopez v. Smith, 203 F.3d II22,

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II26-27 (9th Cir. 2000) (en bane). However, leave to amend need not be given where the

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amendment of the complaint would cause the opposing party undue prejudice, is sought in bad

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faith, constitutes an exercise in futility, or creates undue delay. See Janicki Logging Co. v.

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Mateer, 42 F.3d 56 I, 566 (9th Cir. I994). Here, Davis and Mitchell cannot be liable for the

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alleged violations because Davis and Mitchell did not become involved until after the alleged

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violations occurred. In addition, Davis and Mitchell's involvement was limited to reviewing

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and/or denying plaintiffs administrative appeal, but there is no constitutional right to a prison

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grievance system, and the denial of plaintiffs administrative appeal cannot be the basis of

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Section I983 liability. See Ramirez, 334 F.3d at 860 (holding that prisoners lack a separate

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constitutional entitlement to a specific prison grievance system). Thus, it is clear that any

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amendment would be futile. Davis and Mitchell are dismissed with prejudice and without leave

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to amend.

CONCLUSION

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Defendants Davis and Mitchell are dismissed with prejudice for failure to state a

claim against them.

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The clerk ofthe court shall mail a Notice of Lawsuit and Request for Waiver of

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Service of Summons, two copies ofthe Waiver of Service of Summons, a copy ofthe complaint

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and all attachments thereto (docket no. I), and a copy ofthis order to Associate Warden S.R.

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Albritton and Correctional Lt. R. Kluger at San Quentin State Prison. The clerk of the

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court shall also mail a courtesy copy of the complaint and a copy of this order to the California

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Attorney General's Office. Additionally, the clerk shall mail a copy of this order to plaintiff.

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3.

Defendants are cautioned that Rule 4 ofthe Federal Rules of Civil Procedure

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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requires them to cooperate in saving unnecessary costs of service of the summons and complaint.
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Pursuant to Rule 4, if defendants, after being notified of this action and asked by the court, on

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behalf of plaintiff, to waive service of the summons, fail to do so, they wiii be required to bear

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the cost of such service unless good cause be shown for their failure to sign and return the waiver

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form. If service is waived, this action will proceed as if defendants had been served on the date

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that the waiver is filed, and defendants will not be required to serve and file an answer before

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sixty (60) days from the date on which the request for waiver was sent. Defendants are asked to

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read the statement set forth at the bottom of the waiver form that more completely describes the

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duties of the parties with regard to waiver of service of the summons. If service is waived after

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the date provided in the Notice but before defendants have been personally served, the Answer

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shall be due sixty (60) days from the date on which the request for waiver was sent or twenty

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(20) days from the date the waiver form is filed, whichever is later.

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No later than sixty (60) days from the date the waivers are sent from the court,

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defendants shall file a motion for summary judgment or other dispositive motion with respect to

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the cognizable claims in the complaint. Any motion for summary judgment shall be supported

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by adequate factual documentation and shall conform in all respects to Rule 56 ofthe Federal

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Rules of Civil Procedure. Defendants are advised that summary juda:ment cannot be

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~:ranted,

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the opinion that this case cannot be resolved by summary juda:ment, they shall so inform

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the court prior to the date the summary juda:ment motion is due.

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nor qualified immunity found, if material facts are in dispute. If defendants are of

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Plaintiffs opposition to the dispositive motion shall be filed with the court and

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served on defendants no later than twenty-eight (28) days from the date defendants' motion is

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filed. Plaintiff is advised to read Rule 56 ofthe Federal Rules of Civil Procedure and

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Celotex Corp. v. Catrett, 4 77 U.S. 317 (1986) (holding party opposing summary judgment must

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come forward with evidence showing triable issues of material fact on every essential element of

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his claim).

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Defendants shall file a reply brief no later than fourteen (14) days after plaintitrs

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Order of Partial Dismissal; Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding
Such Motion
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opposition is filed.

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The motion shall be deemed submitted as of the date the reply brief is due. No

hearing will be held on the motion unless the court so orders at a later date.
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All communications by the plaintiff with the court must be served on defendants

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or defendants' counsel, by mailing a true copy of the document to defendants or defendants'

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counsel.

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Discovery may be taken in accordance with the Federal Rules of Civil Procedure.

No further court order is required before the parties may conduct discovery.
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It is plaintiff's responsibility to prosecute this case. Plaintiff must keep the court

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and all parties informed of any change of address and must comply with the court's orders in a

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timely fashion. Failure to do so may result in the dismissal of this action for failure to prosecute

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pursuant to Federal Rule of Civil Procedure 41(b).

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IT IS SO ORDERED.
DATED:

J/2t/ 201 {p
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Order of Service; Directing Defendants to File Dispositive Motion or Notice Regarding Such Motion
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