Wallace v. Olivarria et al
Filing
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ORDER granting Plaintiff's 16 Motion for Leave to Proceed in forma pauperis and 18 Motion for Leave to Proceed in forma pauperis; denying Plaintiff's 13 Motion to Appoint Counsel The Secretary CDCR, or his designee, is ordered to c ollect from prison trust account the $350 balance of the filing 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 exceeds $10 in accordance with 28 USC 1915(b)(2). Court dismisses this action for failing to state claim upon which 1983 relief can be granted pursuant to 28 1915(e)(2)(B)(ii) and 1 915A(b)(1). Court grants Plaintiff 45 days leave from the date of this Order to re-open the case by filing an Amended Complaint. Signed by Judge Cynthia Bashant. (Order electronically transmitted to Secretary of CDCR) (All non-registered users served via U.S. Mail Service) (Blank 1983 Complaint form t/w copy of the Order mailed to Plaintiff) (jah)
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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF CALIFORNIA
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TYRONE WALLACE,
CDCR #P-48941,
Case No. 16-cv-01808-BAS-PCL
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ORDER:
Plaintiff,
vs.
(1) GRANTING MOTIONS TO
PROCEED IN FORMA PAUPERIS
[ECF Nos. 16, 18]
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R. OLIVARRIA; B. SELF; R.
ARMENDARIZ; J. McNEIL; D.
ARGUILEZ,
(2) DENYING MOTION TO
APPOINT COUNSEL
[ECF No. 13]
Defendants.
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AND
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(3) DISMISSING FIRST AMENDED
COMPLAINT FOR FAILING TO
STATE A CLAIM PURSUANT TO
28 U.S.C. §§ 1915(e)(2)(B)(ii)
AND 1915A(b)(1)
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Plaintiff Tyrone Wallace, currently incarcerated at Richard J. Donovan
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Correctional Facility (“RJD”) in San Diego, California, and proceeding pro se, has filed a
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civil rights complaint pursuant to 42 U.S.C. § 1983 (ECF. No. 1). Plaintiff did not prepay
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the civil filing fee required by 28 U.S.C. § 1914(a) when he filed his Complaint; instead,
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he filed two Motions to Proceed In Forma Pauperis (“IFP”) pursuant to 28 U.S.C.
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§ 1915(a) (ECF No. 16, 18). Plaintiff has also filed a Motion to Appoint Counsel (ECF
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No. 13). Before the Court conducted the required sua sponte screening of his Complaint,
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Plaintiff filed a First Amended Complaint (“FAC”) which is now the operative pleading
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(ECF No. 9).
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I.
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Motions to Proceed IFP
All parties instituting any civil action, suit or proceeding in a district court of the
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United States, except an application for writ of habeas corpus, must pay a filing fee of
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$400.1 See 28 U.S.C. § 1914(a). The action may proceed despite a plaintiff’s failure to
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prepay the entire fee only if he is granted leave to proceed IFP pursuant to 28 U.S.C.
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§ 1915(a). See Andrews v. Cervantes, 493 F.3d 1047, 1051 (9th Cir. 2007); Rodriguez v.
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Cook, 169 F.3d 1176, 1177 (9th Cir. 1999). However, a prisoner who is granted leave to
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proceed IFP remains obligated to pay the entire fee in “increments” or “installments,”
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Bruce v. Samuels, __ U.S. __, 136 S. Ct. 627, 629 (2016); Williams v. Paramo, 775 F.3d
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1182, 1185 (9th Cir. 2015). This obligation persists regardless of whether the prisoner’s
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action is ultimately dismissed. See 28 U.S.C. § 1915(b)(1) & (2); Taylor v. Delatoore,
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281 F.3d 844, 847 (9th Cir. 2002).
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Section 1915(a)(2) requires prisoners seeking leave to proceed IFP to submit a
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“certified copy of the trust fund account statement (or institutional equivalent) for . . . the
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6-month period immediately preceding the filing of the complaint.” 28 U.S.C.
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§ 1915(a)(2); see also Andrews v. King, 398 F.3d 1113, 1119 (9th Cir. 2005). From the
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certified trust account statement, the Court assesses an initial payment of 20% of (a) the
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average monthly deposits in the account for the past six months, or (b) the average
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monthly balance in the account for the past six months, whichever is greater, unless the
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In addition to the $350 statutory fee, civil litigants must pay an additional administrative fee of $50. See
28 U.S.C. § 1914(a) (Judicial Conference Schedule of Fees, District Court Misc. Fee Schedule, § 14 (eff.
June 1, 2016). The additional $50 administrative fee does not apply to persons granted leave to proceed
IFP. Id.
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prisoner has no assets. See 28 U.S.C. § 1915(b)(1); 28 U.S.C. § 1915(b)(4). The
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institution having custody of the prisoner then collects subsequent payments, assessed at
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20% of the preceding month’s income in any month in which his account exceeds $10,
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and forwards those payments to the Court until the entire filing fee is paid. See 28 U.S.C.
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§ 1915(b)(2); see also Bruce, 136 S. Ct. at 629.
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In support of his IFP Motion, Plaintiff has submitted a copy of his California
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Department of Corrections and Rehabilitation (“CDCR”) Inmate Statement Report. See
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ECF No. 11. This statement indicates that Plaintiff had an available balance of zero at the
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time he filed this action.
Therefore, the Court GRANTS Plaintiff’s Motions to Proceed IFP (ECF Nos. 16,
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18) and declines to exact an initial partial filing fee. See Bruce, 136 S. Ct. at 629. The
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Court further directs the Secretary of the CDCR, or his designee, to collect the entire
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$350 balance of the filing fees required by 28 U.S.C. § 1914 and forward it to the Clerk
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of the Court pursuant to the installment payment provisions set forth in 28 U.S.C. §
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1915(b)(1). See id.
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II.
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Motion to Appoint Counsel
Plaintiff has also filed a Motion for Appointment of Counsel (ECF No. 13).
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Plaintiff claims that he has developmental disabilities, “bad handwriting,” and a “low
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education.” (Id. at 1-4.)
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Two preliminary points guide the Court’s resolution of Plaintiff’s Motion to
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Appoint Counsel. First, the Court finds Plaintiff’s FAC sufficiently legible and notes that
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“a pro se complaint, however inartfully pleaded, must be held to less stringent standards
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than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007)
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(internal citations and quotation marks omitted). Moreover, Federal Rule of Civil
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Procedure 8(e) requires that “[p]leadings …be construed so as to do justice.”
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Second, there is no constitutional right to counsel in a civil case. Lassiter v. Dept.
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of Soc. Servs., 452 U.S. 18, 25 (1981). While under 28 U.S.C. § 1915(e)(1) district courts
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have limited discretion to “request” that an attorney represent an indigent civil litigant,
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see Agyeman v. Corr. Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004), this
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discretion is exercised only under “exceptional circumstances.” Id.; see also Terrell v.
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Brewer, 935 F.2d 1015, 1017 (9th Cir. 1991). A finding of exceptional circumstances
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requires “an evaluation of the likelihood of the plaintiff’s success on the merits and an
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evaluation of the plaintiff’s ability to articulate his claims ‘in light of the complexity of
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the legal issues involved.’” Agyeman, 390 F.3d at 1103 (quoting Wilborn v. Escalderon,
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789 F.2d 1328, 1331 (9th Cir. 1986)).
Under these circumstances, the Court must DENY Plaintiff’s Motion to Appoint
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Counsel (ECF No. 13) without prejudice because, as discussed below, a liberal
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construction of his FAC suggests Plaintiff is capable of articulating the factual basis for
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his claims, and the likelihood of success on the merits is not at all yet clear at this
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preliminary stage of the proceedings. Id. Therefore, neither the interests of justice nor any
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exceptional circumstances warrant appointment of counsel at this time. LaMere v. Risley,
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827 F.2d 622, 626 (9th Cir. 1987); Terrell, 935 F.2d at 1017.
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III.
Screening Pursuant to 28 U.S.C. §§ 1915(e)(2)(B) and 1915A(b)
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A.
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Because Plaintiff is a prisoner and is proceeding IFP, his complaint requires a pre-
Standard of Review
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answer screening pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b). Under these
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statutes, the Court must sua sponte dismiss a prisoner’s IFP complaint, or any portion of
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it, which is frivolous, malicious, fails to state a claim, or seeks damages from defendants
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who are immune. See Rhodes v. Robinson, 621 F.3d 1002, 1004 (9th Cir. 2010)
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(discussing 28 U.S.C. § 1915A(b)); Lopez v. Smith, 203 F.3d 1122, 1126-27 (9th Cir.
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2000) (en banc) (discussing 28 U.S.C. § 1915(e)(2)). “The purpose of [screening] is ‘to
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ensure that the targets of frivolous or malicious suits need not bear the expense of
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responding.’” Nordstrom v. Ryan, 762 F.3d 903, 920 n.1 (9th Cir. 2014) (quoting
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Wheeler v. Wexford Health Sources, Inc., 689 F.3d 680, 681 (7th Cir. 2012)).
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“The standard for determining whether a plaintiff has failed to state a claim upon
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which relief can be granted under § 1915(e)(2)(B)(ii) is the same as the Federal Rule of
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Civil Procedure 12(b)(6) standard for failure to state a claim.” Watison v. Carter, 668
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F.3d 1108, 1112 (9th Cir. 2012); see also Wilhelm v. Rotman, 680 F.3d 1113, 1121 (9th
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Cir. 2012) (noting that screening pursuant to § 1915A “incorporates the familiar standard
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applied in the context of failure to state a claim under Federal Rule of Civil Procedure
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12(b)(6)”). Rule 12(b)(6) requires a complaint “contain sufficient factual matter, accepted
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as true, to state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
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662, 678 (2009) (internal quotation marks omitted); Wilhelm, 680 F.3d at 1121.
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Detailed factual allegations are not required, but “[t]hreadbare recitals of the
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elements of a cause of action, supported by mere conclusory statements, do not suffice.”
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Iqbal, 556 U.S. at 678. “Determining whether a complaint states a plausible claim for
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relief [is] ... a context-specific task that requires the reviewing court to draw on its
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judicial experience and common sense.” Id. The “mere possibility of misconduct” or
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“unadorned, the defendant-unlawfully-harmed me accusation[s]” fall short of meeting
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this plausibility standard. Id.; see also Moss v. U.S. Secret Service, 572 F.3d 962, 969
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(9th Cir. 2009).
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Finally, in deciding whether Plaintiff has stated a plausible claim for relief, the
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Court may consider exhibits attached to his FAC. See Fed. R. Civ. P. 10(c) (“A copy of a
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written instrument that is an exhibit to a pleading is a part of the pleading for all
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purposes.”); see also Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d
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1542, 1555 n.19 (9th Cir. 1990) (citing Amfac Mortg. Corp. v. Ariz. Mall of Tempe, Inc.,
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583 F.2d 426 (9th Cir. 1978) (“[M]aterial which is properly submitted as part of the
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complaint may be considered” in ruling on a Rule 12(b)(6) motion to dismiss.)).
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B.
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Plaintiff claims that Defendants McNeil and Armendariz are violating his right to
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practice his religion by changing his schedule for his prison job. (FAC at 9.) However,
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Plaintiff provides very little in the way of factual allegations that would indicate how the
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change in work hours have had any impact on the practice of his religion. Thus, to the
Religious Claims
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extent that Plaintiff is attempting to bring a claim under the First Amendment or
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RLUIPA, he fails to allege facts sufficient to state a claim.
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In order to implicate the Free Exercise Clause of the First Amendment, the
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Plaintiff must show that his belief is “sincerely held” and “rooted in religious belief.” See
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Shakur v. Schiro, 514 F.3d 878, 884 (citing Malik v. Brown, 16 F.3d 330, 333 (9th Cir.
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1994). In addition to First Amendment protections, the Religious Land Use and
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Institutionalized Persons Act (“RLUIPA”), 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.
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Morgan Hill, 360 F.3d 1024, 1033-34 (9th Cir. 2004) (“RLUIPA . . . prohibits the
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government from imposing ‘substantial burdens’ on ‘religious exercise’ unless there
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exists a compelling governmental interest and the burden is the least restrictive means of
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satisfying the governmental interest.”).
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RLUIPA defines religious exercise to include “any exercise of religion, whether or
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not compelled by, or central to, a system of religious belief.” 42 U.S.C. § 2000cc-
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5(7)(A); San Jose Christian College, 360 F.3d at 1034. The party alleging a RLUIPA
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violation carries the initial burden of demonstrating that a governmental practice
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constitutes a substantial burden on his religious exercise. See 42 U.S.C. §§ 2000cc-1(a);
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2000cc-2(b) (“[T]he plaintiff shall bear the burden of persuasion on whether the law
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(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, Plaintiff’s factual
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allegations are insufficient to state either a First Amendment or RLUIPA claim because
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he does not discuss the sincerity of his religious belief, the nature of the religious
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exercise, or the substantiality of any burden. Thus, the Court finds Plaintiff’s religious
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claims must be dismissed for failing to state a plausible claim upon which § 1983 relief
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can be granted.
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C.
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Plaintiff also claims that RJD Appeals Coordinators have denied his First
Administrative Grievance Claims
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Amendment right to access the courts by “screening out” several CDC 602 inmate
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appeals. (FAC at 11-12.)
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Prisoners have a constitutional right of access to the courts. Lewis v. Casey, 518
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U.S. 343, 346 (1996). The right is limited to the filing of direct criminal appeals, habeas
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petitions, and civil rights actions. Id. at 354. Claims for denial of access to the courts may
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arise from the frustration or hindrance of “a litigating opportunity yet to be gained”
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(forward-looking access claim) or from the loss of a suit that cannot now be tried
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(backward-looking claim). Christopher v. Harbury, 536 U.S. 403, 412-15 (2002); see
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also Silva v. Di Vittorio, 658 F.3d 1090, 1102 (9th Cir. 2011) (differentiating “between
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two types of access to court claims: those involving prisoners’ right to affirmative
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assistance and those involving prisoners’ rights to litigate without active interference.”).
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However, Plaintiff must allege “actual injury” as the threshold requirement to any
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access to courts claim. Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. An “actual
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injury” is “actual prejudice with respect to contemplated or existing litigation, such as the
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inability to meet a filing deadline or to present a claim.” Lewis, 518 U.S. at 348; see also
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Jones v. Blanas, 393 F.3d 918, 936 (9th Cir. 2004) (defining actual injury as the
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“inability to file a complaint or defend against a charge”). The failure to allege an actual
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injury is “fatal.” Alvarez v. Hill, 518 F.3d 1152, 1155 n.1 (9th Cir. 2008) (“Failure to
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show that a ‘non-frivolous legal claim had been frustrated’ is fatal.”) (quoting Lewis, 518
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U.S. at 353 & n.4).
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In addition, Plaintiff must allege the loss of a “non-frivolous” or “arguable”
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underlying claim. Harbury, 536 U.S. at 413-14. The nature and description of the
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underlying claim must be set forth in the pleading “as if it were being independently
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pursued.” Id. at 417. Finally, Plaintiff must specifically allege the “remedy that may be
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awarded as recompense but not otherwise available in some suit that may yet be
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brought.” Id. at 415.
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Plaintiff’s FAC fails to allege the “actual injury” required to state an access to
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courts claim. See Lewis, 518 U.S. at 351-53; Silva, 658 F.3d at 1104. Thus, the Court
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finds that Plaintiff’s FAC fails to include any further “factual matter” to show how or
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why any of the individual Defendants in this case caused him to suffer any “actual
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prejudice” “such as the inability to meet a filing deadline or to present a claim,” with
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respect to another case. Lewis, 518 U.S. at 348; Jones, 393 F.3d at 936; Iqbal, 556 U.S. at
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678.
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Thus, because Plaintiff has failed to allege facts sufficient to show that Defendants
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caused him to suffer any “actual injury” with respect to any non-frivolous direct criminal
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appeal, habeas petition, or civil rights action he may have filed, the Court finds Plaintiff’s
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access to courts claims must be dismissed for failing to state a plausible claim upon
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which § 1983 relief can be granted. See 28 U.S.C. § 1915(e)(2)(B)(ii), § 1915A(b)(1);
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Iqbal, 556 U.S. at 678.
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To the extent that Plaintiff alleges that his due process rights have been violated as
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a result of the manner in which his grievances were processed, Plaintiff has failed to state
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a Fourteenth Amendment claim. While the Fourteenth Amendment provides that “[n]o
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state shall . . . deprive any person of life, liberty, or property, without due process of
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law,” U.S. Const. amend. XIV, § 1, “[t]he requirements of procedural due process apply
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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).
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State statutes and prison regulations may grant prisoners liberty or property interests
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sufficient to invoke due process protection. Meachum v. Fano, 427 U.S. 215, 223-27
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(1976). However, to state a procedural due process claim, Plaintiff must allege: “(1) a
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liberty or property interest protected by the Constitution; (2) a deprivation of the interest
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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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The Ninth Circuit has held that inmates have no protected property interest in an
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inmate grievance procedure arising directly from the Due Process Clause. See Ramirez v.
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Galaza, 334 F.3d 850, 869 (9th Cir. 2003) (“[I]nmates lack a separate constitutional
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entitlement to a specific prison grievance procedure”) (citing Mann v. Adams, 855 F.2d
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639, 640 (9th Cir. 1988) (finding that the due process clause of the Fourteenth
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Amendment creates “no legitimate claim of entitlement to a [prison] grievance
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procedure”)). Even the non-existence of, or the failure of prison officials to properly
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implement, an administrative appeals process within the prison system does not raise
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constitutional concerns. Mann, 855 F.2d at 640; see also Buckley v. Barlow, 997 F.2d
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494, 495 (8th Cir. 1993).
In addition, Plaintiff has failed to plead facts sufficient to show that Defendants
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deprived him of a protected liberty interest by allegedly failing to respond to any
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particular prison grievance in a satisfactory manner. While a liberty interest can arise
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from state law or prison regulations, Meachum, 427 U.S. at 223-27, due process
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protections are implicated only if Plaintiff alleges facts to show that Defendants: (1)
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restrained his freedom in a manner not expected from his sentence, and (2) “impose[d]
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atypical and significant hardship on [him] in relation to the ordinary incidents of prison
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life.” Sandin v. Conner, 515 U.S. 472, 484 (1995). Here, Plaintiff pleads no facts to
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suggest how Defendants’ allegedly inadequate review or failure to consider inmate
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grievances restrained his freedom in any way, or subjected him to any “atypical” and
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“significant hardship.” Id. at 483-84.
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Accordingly, Plaintiff’s claims relating to the processing of his grievances must be
dismissed pursuant to 28 U.S.C. § 1915(e)(2) and § 1915A(b).
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D.
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Because Plaintiff is proceeding without counsel, and has now been provided with
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notice of his FAC’s deficiencies, the Court will grant him leave to amend. See Rosati v.
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Igbinoso, 791 F.3d 1037, 1039 (9th Cir. 2015) (“A district court should not dismiss a pro
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se complaint without leave to amend [pursuant to 28 U.S.C. § 1915(e)(2)(B)(ii)] unless ‘it
Leave to Amend
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is absolutely clear that the deficiencies of the complaint could not be cured by
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amendment.’”) (quoting Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012)).
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IV.
Conclusion and Order
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For the foregoing reasons, the Court:
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1.
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GRANTS Plaintiff’s Motions to Proceed IFP pursuant to 28 U.S.C.
§ 1915(a) (ECF Nos. 16, 18).
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DIRECTS the Secretary of the CDCR, or his designee, to collect from
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Plaintiff's prison trust account the $350 filing fee owed in this case by garnishing
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monthly payments from his account in an amount equal to twenty percent (20%) of the
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preceding month's income and forwarding those payments to the Clerk of the Court each
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time the amount in the account exceeds $10 pursuant to 28 U.S.C. § 1915(b)(2). ALL
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PAYMENTS SHALL BE CLEARLY IDENTIFIED BY THE NAME AND NUMBER
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ASSIGNED TO THIS ACTION.
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3.
DIRECTS the Clerk of the Court to serve a copy of this Order on Scott
Kernan, Secretary, CDCR, P.O. Box 942883, Sacramento, California, 94283-0001.
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4.
DENIES Plaintiff’s Motion to Appoint Counsel (ECF No. 13).
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5.
DISMISSES this civil action for failing to state a claim upon which § 1983
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relief can granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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GRANTS Plaintiff forty-five (45) days leave from the date of this Order in
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which to re-open his case by filing an Amended Complaint which cures all the
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deficiencies of pleading described in this Order. If Plaintiff elects to file an Amended
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Complaint, it must be complete by itself without reference to his original pleading. See
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CivLR 15.1; Hal Roach Studios, Inc. v. Richard Feiner & Co., Inc., 896 F.2d 1542, 1546
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(9th Cir. 1989) (“[A]n amended pleading supersedes the original.”).
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If Plaintiff fails to file an Amended Complaint within the time provided, this civil
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action will remain dismissed without prejudice based on his failure to state a claim upon
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which relief can be granted pursuant to 28 U.S.C. §§ 1915(e)(2)(B)(ii) and 1915A(b)(1).
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7.
The Clerk of Court is directed to mail Plaintiff a copy of a court approved
civil rights complaint form.
IT IS SO ORDERED.
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DATED: October 21, 2016
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