Fonseca v. Colio et al
Filing
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ORDER (1) granting 2 Motion for Leave to Proceed in forma pauperis; and (2) Dismissing Complaint for Failure to State a Claim: The Secretary CDCR, or his designee, is ordered to collect from prison trust account the $350 balance of the fili ng fee owed in this case by collecting monthly payments from the trust account in an amount equal to 20% of the preceding month income credited to the account and forward payments to the Clerk of the Court each time the amount in the account exc eeds $10 in accordance with 28 USC 1915(b)(2). Order electronically transmitted to Matthew Cate, Secretary CDCR. Plaintiff is GRANTED 45 days leave from the date this Order is "Filed" in which to file a First Amended Complaint which cures all the deficiencies of pleading. Clerk to send 1983 form. Signed by Judge Janis L. Sammartino on 2/28/12. (All non-registered users served via U.S. Mail Service)(lmt)(form sent) (cap).
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UNITED STATES DISTRICT COURT
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SOUTHERN DISTRICT OF CALIFORNIA
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RODERICK O. FONSECA,
CDCR #G-62092,
Civil No.
Plaintiff,
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ORDER:
(1) GRANTING PLAINTIFF’S
MOTION TO PROCEED IN FORMA
PAUPERIS, IMPOSING NO INITIAL
PARTIAL FILING FEE, GARNISHING
$350.00 BALANCE FROM
PRISONER’S TRUST ACCOUNT; AND
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12cv0324 JLS (PCL)
vs.
P. COLIO; C.G. BUTLER;
H. LOPEZ; E. DELGADO;
L.S. McEWEN;
(2) DISMISSING COMPLAINT FOR
FAILURE TO STATE A CLAIM
PURSUANT TO 28 U.S.C. §§ 1915(e)(2)
AND 1915A(b)
Defendants.
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Roderick O. Fonseca (“Plaintiff”), a state prisoner currently incarcerated at Calipatria State
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Prison located in Calipatria, California, and proceeding pro se, initially submitted a civil action
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pursuant to 42 U.S.C. § 1983 in the Northern District of California. United States District Judge
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Jeffrey White determined that the actions alleged in Plaintiff’s Complaint arose in Calipatria and
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thus, transferred the matter to the Southern District of California on February 3, 2012.
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MOTION TO PROCEED IFP
All parties instituting any civil action, suit or proceeding in a district court of the United
States, except an application for writ of habeas corpus, must pay a filing fee of $350. See 28 U.S.C.
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§ 1914(a). An action may proceed despite a plaintiff’s failure to prepay the entire fee only if the
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plaintiff is granted leave to proceed IFP pursuant to 28 U.S.C. § 1915(a). See Rodriguez v. Cook,
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169 F.3d 1176, 1177 (9th Cir. 1999). However, prisoners granted leave to proceed IFP remain
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obligated to pay the entire fee in installments, regardless of whether their action is ultimately
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dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore, 281 F.3d 844, 847 (9th Cir.
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2002).
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Under 28 U.S.C. § 1915, as amended by the Prison Litigation Reform Act (“PLRA”), a
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prisoner seeking leave to proceed IFP must submit a “certified copy of the trust fund account
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statement (or institutional equivalent) for the prisoner for the six-month period immediately
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preceding the filing of the complaint.” 28 U.S.C. § 1915(a)(2); Andrews v. King, 398 F.3d 1113,
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1119 (9th Cir. 2005). From the certified trust account statement, the Court must assess an initial
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payment of 20% of (a) the average monthly deposits in the account for the past six months, or (b) the
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average monthly balance in the account for the past six months, whichever is greater, unless the
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prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The institution having
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custody of the prisoner must collect subsequent payments, assessed at 20% of the preceding month’s
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income, in any month in which the prisoner’s account exceeds $10, and forward those payments to
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the Court until the entire filing fee is paid. See 28 U.S.C. § 1915(b)(2).
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The Court finds that Plaintiff has no available funds from which to pay filing fees at this
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time. See 28 U.S.C. § 1915(b)(4) (providing that “[i]n no event shall a prisoner be prohibited from
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bringing a civil action or appealing a civil action or criminal judgment for the reason that the
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prisoner has no assets and no means by which to pay the initial partial filing fee.”); Taylor, 281 F.3d
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at 850 (finding that 28 U.S.C. § 1915(b)(4) acts as a “safety-valve” preventing dismissal of a
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prisoner’s IFP case based solely on a “failure to pay ... due to the lack of funds available to him
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when payment is ordered.”). Therefore, the Court GRANTS Plaintiff’s Motion to Proceed IFP
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[ECF No. 2] and assesses no initial partial filing fee per 28 U.S.C. § 1915(b)(1). However, the
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entire $350 balance of the filing fees mandated shall be collected and forwarded to the Clerk of the
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Court pursuant to the installment payment provisions set forth in 28 U.S.C. § 1915(b)(1).
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//
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INITIAL SCREENING PER 28 U.S.C. §§ 1915(e)(2)(b)(ii) and 1915A(b)(1)
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Notwithstanding IFP status or the payment of any partial filing fees, the Court must subject
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each civil action commenced pursuant to 28 U.S.C. § 1915(a) to mandatory screening and order the
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sua sponte dismissal of any case it finds “frivolous, malicious, failing to state a claim upon which
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relief may be granted, or seeking monetary relief from a defendant immune from such relief.” 28
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U.S.C. § 1915(e)(2)(B); Calhoun v. Stahl, 254 F.3d 845, 845 (9th Cir. 2001) (“[T]he provisions of
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28 U.S.C. § 1915(e)(2)(B) are not limited to prisoners.”); Lopez v. Smith, 203 F.3d 1122, 1126-27
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(9th Cir. 2000) (en banc) (noting that 28 U.S.C. § 1915(e) “not only permits but requires” the court
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to sua sponte dismiss an in forma pauperis complaint that fails to state a claim).
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Before its amendment by the PLRA, former 28 U.S.C. § 1915(d) permitted sua sponte
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dismissal of only frivolous and malicious claims. Lopez, 203 F.3d at 1130. However, as amended,
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28 U.S.C. § 1915(e)(2) mandates that the court reviewing an action filed pursuant to the IFP
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provisions of section 1915 make and rule on its own motion to dismiss before directing the U.S.
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Marshal to effect service pursuant to FED.R.CIV.P. 4(c)(3). See Calhoun, 254 F.3d at 845; Lopez,
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203 F.3d at 1127; see also McGore v. Wrigglesworth, 114 F.3d 601, 604-05 (6th Cir. 1997) (stating
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that sua sponte screening pursuant to § 1915 should occur “before service of process is made on the
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opposing parties”).
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“[W]hen determining whether a complaint states a claim, a court must accept as true all
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allegations of material fact and must construe those facts in the light most favorable to the plaintiff.”
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Resnick v. Hayes, 213 F.3d 443, 447 (9th Cir. 2000); Barren, 152 F.3d at 1194 (noting that
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§ 1915(e)(2) “parallels the language of Federal Rule of Civil Procedure 12(b)(6)”); Andrews, 398
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F.3d at 1121. In addition, the Court has a duty to liberally construe a pro se’s pleadings, see Karim-
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Panahi v. Los Angeles Police Dep’t, 839 F.2d 621, 623 (9th Cir. 1988), which is “particularly
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important in civil rights cases.” Ferdik v. Bonzelet, 963 F.2d 1258, 1261 (9th Cir. 1992). In giving
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liberal interpretation to a pro se civil rights complaint, however, the court may not “supply essential
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elements of claims that were not initially pled.” Ivey v. Board of Regents of the University of
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Alaska, 673 F.2d 266, 268 (9th Cir. 1982).
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//
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Section 1983 imposes two essential proof requirements upon a claimant: (1) that a person
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acting under color of state law committed the conduct at issue, and (2) that the conduct deprived the
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claimant of some right, privilege, or immunity protected by the Constitution or laws of the United
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States. See 42 U.S.C. § 1983; Nelson v. Campbell, 541 U.S. 637, 124 S.Ct. 2117, 2122 (2004);
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Haygood v. Younger, 769 F.2d 1350, 1354 (9th Cir. 1985) (en banc).
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Plaintiff’s Complaint is not entirely clear but it appears that he is claiming that on two
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occasions Defendant Colio denied Plaintiff a portion of his meals. (See Compl. at 3.) Plaintiff
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appears to bring this claim both as an Eighth Amendment cruel and unusual punishment claim and
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as a denial of his rights under the Religious Land Use and Institutionalized Persons Act
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(“RLUIPA”).
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To state a claim for cruel and unusual punishment, however, Plaintiff must allege facts
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sufficient to show that the conditions of his confinement subjected him to “unquestioned and serious
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deprivations of basic human needs.” Rhodes v. Chapman, 452 U.S. 337, 347 (1981); Wilson v.
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Seiter, 501 U.S. 294, 298-300 (1991). The Eighth Amendment “does not mandate comfortable
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prisons,” and conditions imposed may be “restrictive and even harsh.” Rhodes, 452 U.S. at 347,
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349. Adequate food is a basic human need protected by the Eighth Amendment. Hoptowit v. Ray,
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682 F.2d 1237, 1246 (9th Cir. 1982). However, prison food need not be “tasty or aesthetically
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pleasing,” and it need only be “adequate to maintain health.” LeMaire v. Maass, 12 F.3d 1444, 1456
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(9th Cir. 1993); Keenan v. Hall, 83 F.3d 1083, 1091 (9th Cir. 1996).
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Although the Ninth Circuit has never decided what exact quantity of prisoner food is
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necessary to pass constitutional muster, other courts have established guidelines. See, e.g., Green v.
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Ferrell, 801 F.2d 765, 770-71 (5th Cir. 1986) (finding two meals a day sufficient if nutritionally and
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calorically adequate); see also Sostre v. McGinnis, 442 F.2d 178, 186, 193-94 (2d Cir. 1971)
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(finding diets of 2,800 to 3,300 calories per day constitutionally adequate); Cunningham v. Jones,
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667 F.2d 565, 566 (6th Cir. 1982) (finding one meal a day for 15 days, where the meal contained
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2,000-2,500 calories and was sufficient to maintain health, constitutionally adequate). It is clear,
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however, that even the complete denial of single meals on a few occasions is insufficient to support
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a claim of cruel and unusual punishment. See e.g., Palmer v. Johnson, 193 F.3d 346, 352 (5th Cir.
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1999) (“[T]hat Palmer may have missed one meal ... does not rise to the level of a cognizable
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constitutional injury”); Talib v. Gilley, 138 F.3d 211, 214 n.3 (5th Cir. 1998) (“Missing a mere one
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out of every nine meals is hardly more than that missed by many working citizens over the same
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period.”); Wilkins v. Roper, 843 F. Supp. 1327, 1328 (E.D. Mo. 1994) (denial of one meal does not
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give rise to constitutional violation).
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Here, Plaintiff has failed to state a cruel and unusual punishment claim because he has failed
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to allege facts which show that he was denied sufficient food or nutrition necessary to maintain his
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health. LeMaire, 12 F.3d at 1456; see also Hutto v. Finney, 437 U.S. 678, 686-87 (1978) (when
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considering Eight Amendment challenges to the conditions of confinement, court should consider
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amount of time the prisoner was subject to the allegedly unconstitutional condition).
While Plaintiff also appears to attempt to allege a claim under RLUIPA, the factual
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allegations in the Complaint are so disjointed that it is simply not clear to the Court the nature of
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Plaintiff’s religious claims. The Religious Land Use and Institutionalized Persons Act (“RLUIPA”),
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42 U.S.C. § 2000cc-1 et. seq., provides:
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No government shall impose a substantial burden on the religious exercise of a
person residing in or confined to an institution . . . even if the burden results from a rule
of general applicability, unless the government demonstrates that imposition of the
burden on that person – [¶] (1) is in furtherance of a compelling governmental interest;
and [¶] (2) is the least restrictive means of furthering that compelling governmental
interest.
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42 U.S.C. § 2000cc-1(a) (emphasis added); see also San Jose Christian College v. Morgan Hill, 360
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F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA ‘replaces the void provisions of RFRA’ . . . and prohibits
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the government from imposing ‘substantial burdens’ on ‘religious exercise’ unless there exists a
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compelling governmental interest and the burden is the least restrictive means of satisfying the
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governmental interest.”).
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RLUIPA defines religious exercise to include “any exercise of religion, whether or not
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compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-5(7)(A); San Jose
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Christian College, 360 F.3d at 1034. The party alleging a RLUIPA violation carries the initial burden
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of demonstrating that a governmental practice constitutes a substantial burden on his religious exercise.
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See 42 U.S.C. §§ 2000cc-1(a); 2000cc-2(b) (“[T]he plaintiff shall bear the burden of persuasion on
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12cv0324 JLS (PCL)
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whether the law (including a regulation) or government practice that is challenged by the claim
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substantially burdens the plaintiff’s exercise of religion.”).). Here, the Court finds that Plaintiff’s claims
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lack sufficient factual allegations to state a claim under RLUIPA.
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Finally, Plaintiff also appears to allege that his Fourteenth Amendment due process rights have
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been violated by the alleged inadequate review of his administrative grievances. (See Compl. at 4.)
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The Fourteenth Amendment provides that: “[n]o state shall ... deprive any person of life, liberty, or
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property, without due process of law.” U.S. CONST. amend. XIV, § 1. “The requirements of procedural
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due process apply only to the deprivation of interests encompassed by the Fourteenth Amendment’s
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protection of liberty and property.” Board of Regents v. Roth, 408 U.S. 564, 569 (1972). State statutes
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and prison regulations may grant prisoners liberty or property interests sufficient to invoke due process
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protection. Meachum v. Fano, 427 U.S. 215, 223-27 (1976). To state a procedural due process claim,
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Plaintiff must allege: “(1) a liberty or property interest protected by the Constitution; (2) a deprivation
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of the interest by the government; [and] (3) lack of process.” Wright v. Riveland, 219 F.3d 905, 913 (9th
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Cir. 2000).
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in an inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v. Galaza,
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334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional entitlement to a specific
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prison grievance procedure”) (citing Mann v. Adams, 855 F.2d 639, 640 (9th Cir. 1988) (finding that
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the due process clause of the Fourteenth Amendment creates “no legitimate claim of entitlement to a
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[prison] grievance procedure”)); accord Adams v. Rice, 40 F.3d 72, 75 (4th Cir. 1994) (1995); Buckley
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v. Barlow, 997 F.2d 494, 495 (8th Cir. 1993).
However, the Ninth Circuit has held that prisoners have no protected property interest
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In addition, Plaintiff has failed to plead facts sufficient to show that prison official deprived him
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of a protected liberty interest by allegedly failing to respond to his prison grievances in a satisfactory
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manner. While a liberty interest can arise from state law or prison regulations, Meachum, 427 U.S. at
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223-27, due process protections are implicated only if Plaintiff alleges facts to show that Defendants:
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(1) restrained his freedom in a manner not expected from his sentence, and (2) “impose[d] atypical and
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significant hardship on [him] in relation to the ordinary incidents of prison life.” Sandin v. Conner, 515
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U.S. 472, 484 (1995); Neal v. Shimoda, 131 F.3d 818, 827-28 (9th Cir. 1997). Plaintiff pleads nothing
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to suggest how the allegedly inadequate review and consideration of his inmate grievances amounted
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to a restraint on his freedom not contemplated by his original sentence or how it resulted in an “atypical”
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and “significant hardship.” Sandin, 515 U.S. at 483-84.
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Thus, to the extent Plaintiff challenges the procedural adequacy of inmate grievance procedures,
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his Complaint fails to state a due process claim. See 28 U.S.C. § 1915A(b)(1); Resnick, 213 F.3d at 446.
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Accordingly, the Court finds that Plaintiff’s Complaint fails to state a section 1983 claim upon
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which relief may be granted, and is therefore subject to dismissal pursuant to 28 U.S.C. §§ 1915(e)(2)(b)
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& 1915A(b). The Court will provide Plaintiff with an opportunity to amend his pleading to cure the
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defects set forth above. Plaintiff is warned that if his amended complaint fails to address the
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deficiencies of pleading noted above, it may be dismissed with prejudice and without leave to amend.
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CONCLUSION AND ORDER
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Good cause appearing, IT IS HEREBY ORDERED that:
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1.
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Plaintiff’s Motion to proceed IFP pursuant to 28 U.S.C. § 1915(a) [ECF No. 2] is
GRANTED.
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The Secretary of California Department of Corrections and Rehabilitation, or his
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designee, shall collect from Plaintiff’s prison trust account the $350 balance of the filing fee owed in
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this case by collecting monthly payments from the account in an amount equal to twenty percent (20%)
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of the preceding month’s income and forward payments to the Clerk of the Court each time the amount
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in the account exceeds $10 in accordance with 28 U.S.C. § 1915(b)(2). ALL PAYMENTS SHALL BE
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CLEARLY IDENTIFIED BY THE NAME AND NUMBER ASSIGNED TO THIS ACTION.
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3.
The Clerk of the Court is directed to serve a copy of this Order on Matthew Cate,
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Secretary, California Department of Corrections and Rehabilitation, 1515 S Street, Suite 502,
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Sacramento, California 95814.
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IT IS FURTHER ORDERED that:
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4.
Plaintiff’s Complaint is DISMISSED without prejudice pursuant to 28 U.S.C.
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§§ 1915(e)(2)(b) and 1915A(b). However, Plaintiff is GRANTED forty five (45) days leave from the
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date this Order is “Filed” in which to file a First Amended Complaint which cures all the deficiencies
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of pleading noted above. Plaintiff’s Amended Complaint must be complete in itself without reference
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to the superseded pleading. See S.D. Cal. Civ. L. R. 15.1. Defendants not named and all claims not re7
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alleged in the Amended Complaint will be deemed to have been waived. See King v. Atiyeh, 814 F.2d
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565, 567 (9th Cir. 1987). Further, if Plaintiff’s Amended Complaint fails to state a claim upon which
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relief may be granted, it may be dismissed without further leave to amend and may hereafter be
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counted as a “strike” under 28 U.S.C. § 1915(g). See McHenry v. Renne, 84 F.3d 1172, 1177-79 (9th
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Cir. 1996).
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5.
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The Clerk of Court is directed to mail a court approved form § 1983 complaint to
Plaintiff.
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DATED: February 28, 2012
Honorable Janis L. Sammartino
United States District Judge
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